As filed with the Securities and Exchange Commission on August 16, 2004
Registration No. 333-116420
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
InPhonic, Inc.
(Exact name of registrant as specified in its charter)
1010 Wisconsin Avenue, Suite 600
Washington, DC 20007
(202) 333-0001
(Address, including zip code, and telephone number, including area code of registrant’s principal executive offices)
| Delaware | 4899 | 52-2199384 | ||
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (IRS Employer Identification Number) |
David A. Steinberg
Chairman and Chief Executive Officer
InPhonic, Inc.
1010 Wisconsin Avenue, Suite 600
Washington, DC 20007
(202) 333-0001
(Name, address, including zip code and telephone number, including area code of agent for service)
Copies to:
Gregory M. Gallo, Esquire Peter M. Astiz, Esquire Tami J. Howie, Esquire Gray Cary Ware & Freidenrich LLP 1625 Massachusetts Avenue, NW, Suite 300 Washington, DC 20036-2247 (202) 238-7000 | Marlee S. Myers, Esquire Kimberly A. Taylor, Esquire Morgan, Lewis & Bockius LLP One Oxford Centre Thirty-Second Floor Pittsburgh, PA 15219 (412) 560-3300 |
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, as amended (the “Securities Act”) check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) of 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 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 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. ¨
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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
16. Exhibits and financial statement schedules
(a) Exhibits
| Exhibit Number | Description | |
| 1.1(a) | Form of Underwriting Agreement | |
| 3.1(b) | Tenth Amended and Restated Certificate of Incorporation of InPhonic dated June 12, 2003 | |
| 3.1.1(a) | Form of Eleventh Amended and Restated Certificate of Incorporation of InPhonic (to be effective upon the completion of this offering) | |
| 3.1.2(b) | Second Amended and Restated Bylaws of InPhonic dated August 7, 2001, as amended by Amendment No. 1 dated June 10, 2003 | |
| 3.1.3(a) | Form of Third Amended and Restated Bylaws of InPhonic (to be effective upon the completion of this offering) | |
| 4.1(a) | Specimen stock certificate for shares of common stock of InPhonic | |
| 5.1(b) | Form of opinion of Gray Cary Ware & Freidenrich LLP, regarding legality of securities being registered | |
| 10.1(b) | Seventh Amended and Restated Investor Rights Agreement dated as of June 12, 2003 by and among InPhonic and the Investors listed therein | |
| 10.2(b) | Series D-4 Convertible Preferred Stock Purchase Agreement dated as of July 19, 2002 by and among InPhonic and the Purchasers listed therein | |
| 10.3(b) | Asset Purchase Agreement dated as of May 13, 2003 by and among InPhonic, Inc. and Avesair, Inc. | |
| 10.4(b) | Series E Convertible Preferred Stock and Warrant Purchase Agreement dated as of June 12, 2003 by and among InPhonic and the Purchasers listed therein | |
| 10.5(b) | Third Amended and Restated Loan and Security Agreement dated as of August 7, 2003 by and between Comerica Bank-California, InPhonic and SimIpc Acquisition Corp., as amended by Joinder Agreement and First Amendment dated as of June 2, 2004 | |
| 10.6(b) | Common Stock Purchase Warrant dated June 2, 2004 by and between InPhonic and Comerica Bank-California | |
| 10.7(b) | Form of Assignment of Invention, Nondisclosure and Noncompetition Agreement | |
| 10.8(b) | Employment Agreement dated as of February 4, 2000, by and between InPhonic and David A. Steinberg, as amended by Amendment No. 1 dated March 1, 2004 and Amendment No. 2 dated May 14, 2004 | |
| 10.9(a) | Employment Agreement dated as of April 2, 2002, by and between InPhonic and Frank C. Bennett III | |
| 10.10(b) | Employment Agreement dated as of June 3, 2002 by and between InPhonic and Donald Charlton, as amended by Amendment No. 1 dated May 25, 2004 | |
| 10.11(b) | Offer Letter dated as of January 16, 2004 by and between InPhonic and Lawrence S. Winkler | |
| 10.12(b) | Offer Letter dated as of March 19, 2004 by and between InPhonic and Richard D. Calder, Jr. | |
| 10.13(b) | Employment Agreement dated as of February 26, 2002 by and between InPhonic and Michael Ferzacca, as amended by Amendment No. 1 dated January 23, 2003 | |
II-1
| Exhibit Number | Description | |
| 10.14(b) | 1999 Amended and Restated Stock Incentive Plan | |
| 10.15(b) | Lease dated as of February 26, 2001 by and between Rouse Commercial Properties, LLC, Rouse Office Management, LLC and InPhonic, as amended by First Amendment to Lease, dated | |
| 10.16(b) | Lease Agreement dated April 29, 2003 by and between Waterfront Center Limited Partnership and InPhonic, as amended by Addendum No. 1, dated September 9, 2003 and Addendum No. 2, dated May 14, 2004 | |
| 10.17(c) | Premier I-Dealer Agreement dated March 1, 2001 by and between T-Mobile USA, Inc., and its subsidiaries and affiliates and InPhonic and its affiliates and related entities, as amended | |
| 10.18(c) | Private Label PCS Services Agreement dated as of August 2, 2002 by and between Sprint Spectrum L.P. and Star Number, Inc., as amended | |
| 21.1(b) | Subsidiaries of InPhonic | |
| 23.1(b) | Consent of KPMG LLP | |
| 23.1.1(b) | Consent of KPMG LLP | |
| 23.2(b) | Consent of PricewaterhouseCoopers LLP | |
| 23.3(b) | Consent of Gray Cary Ware & Freidenrich LLP (included as part of Exhibit 5.1 hereto) | |
| 24.1(b) | Power of Attorney (see page II-8 of the original filing of this Registration Statement) | |
| (a) | To be filed by amendment. |
| (b) | Previously filed. |
| (c) | Confidential treatment requested as to certain portions, which portions are omitted and filed separately with the Commission. |
(b) Financial Statement Schedules:
Schedules have been omitted because the information required to be shown in the schedules is not applicable or is included elsewhere in our financial statements or the notes thereto.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the District of Columbia, on the 16th day of August, 2004.
| INPHONIC, INC. | ||
By: | /s/ Walter W. Leach III | |
| Walter W. Leach III | ||
| General Counsel | ||
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on August 16, 2004:
Name | Title | |
/s/ David A. Steinberg* David A. Steinberg | Chairman of the Board and Chief Executive Officer (Principal Executive Officer) | |
/s/ Lawrence S. Winkler* Lawrence S. Winkler | Chief Financial Officer, Executive Vice President and Treasurer (Principal Accounting and Financial Officer) | |
/s/ Ira Brind* Ira Brind | Director | |
/s/ Robert Fox* Robert Fox | Director | |
/s/ Jay Hoag* Jay Hoag | Director | |
/s/ Jack Kemp* Jack Kemp | Director | |
/s/ Mark J. Levine* Mark J. Levine | Director | |
/s/ John Sculley* John Sculley | Director | |
/s/ Thomas Wheeler* Thomas Wheeler | Director | |
| * | Signed pursuant to Power of Attorney previously filed. |
By: | /s/ Walter W. Leach III | |
| Walter W. Leach III | ||
| General Counsel | ||
II-3
EXHIBIT INDEX
| Exhibit Number | Description | |
| 1.1(a) | Form of Underwriting Agreement | |
| 3.1(b) | Tenth Amended and Restated Certificate of Incorporation of InPhonic dated June 12, 2003 | |
| 3.1.1(a) | Form of Eleventh Amended and Restated Certificate of Incorporation of InPhonic (to be effective upon the completion of this offering) | |
| 3.1.2(b) | Second Amended and Restated Bylaws of InPhonic dated August 7, 2001, as amended by Amendment No. 1 dated June 10, 2003 | |
| 3.1.3(a) | Form of Third Amended and Restated Bylaws of InPhonic (to be effective upon the completion of this offering) | |
| 4.1(a) | Specimen stock certificate for shares of common stock of InPhonic | |
| 5.1(b) | Form of opinion of Gray Cary Ware & Freidenrich LLP, regarding legality of securities being registered | |
| 10.1(b) | Seventh Amended and Restated Investor Rights Agreement dated as of June 12, 2003 by and among InPhonic and the Investors listed therein | |
| 10.2(b) | Series D-4 Convertible Preferred Stock Purchase Agreement dated as of July 19, 2002 by and among InPhonic and the Purchasers listed therein | |
| 10.3(b) | Asset Purchase Agreement dated as of May 13, 2003 by and among InPhonic, Inc. and Avesair, Inc. | |
| 10.4(b) | Series E Convertible Preferred Stock and Warrant Purchase Agreement dated as of June 12, 2003 by and among InPhonic and the Purchasers listed therein | |
| 10.5(b) | Third Amended and Restated Loan and Security Agreement dated as of August 7, 2003 by and between Comerica Bank-California, InPhonic and SimIpc Acquisition Corp., as amended by Joinder Agreement and First Amendment dated as of June 2, 2004 | |
| 10.6(b) | Common Stock Purchase Warrant dated June 2, 2004 by and between InPhonic and Comerica Bank-California | |
| 10.7(b) | Form of Assignment of Invention, Nondisclosure and Noncompetition Agreement | |
| 10.8(b) | Employment Agreement dated as of February 4, 2000, by and between InPhonic and David A. Steinberg, as amended by Amendment No. 1 dated March 1, 2004 and Amendment No. 2 dated May 14, 2004 | |
| 10.9(a) | Employment Agreement dated as of April 2, 2002, by and between InPhonic and Frank C. Bennett III | |
| 10.10(b) | Employment Agreement dated as of June 3, 2002 by and between InPhonic and Donald Charlton, as amended by Amendment No. 1 dated May 25, 2004 | |
| 10.11(b) | Offer Letter dated as of January 16, 2004 by and between InPhonic and Lawrence S. Winkler | |
| 10.12(b) | Offer Letter dated as of March 19, 2004 by and between InPhonic and Richard D. Calder, Jr. | |
| 10.13(b) | Employment Agreement dated as of February 26, 2002 by and between InPhonic and Michael Ferzacca, as amended by Amendment No. 1 dated January 23, 2003 | |
| 10.14(b) | 1999 Amended and Restated Stock Incentive Plan | |
| 10.15(b) | Lease dated as of February 26, 2001 by and between Rouse Commercial Properties, LLC, Rouse Office Management, LLC and InPhonic, as amended by First Amendment to Lease, dated | |
| Exhibit Number | Description | |
| 10.16(b) | Lease Agreement dated April 29, 2003 by and between Waterfront Center Limited Partnership and InPhonic, as amended by Addendum No. 1, dated September 9, 2003 and Addendum No. 2, dated May 14, 2004 | |
| 10.17(c) | Premier I-Dealer Agreement dated March 1, 2001 by and between T-Mobile USA, Inc., and its subsidiaries and affiliates and InPhonic and its affiliates and related entities, as amended | |
| 10.18(c) | Private Label PCS Services Agreement dated as of August 2, 2002 by and between Sprint Spectrum L.P. and Star Number, Inc., as amended | |
| 21.1(b) | Subsidiaries of InPhonic | |
| 23.1(b) | Consent of KPMG LLP | |
| 23.1.1(b) | Consent of KPMG LLP | |
| 23.2(b) | Consent of PricewaterhouseCoopers LLP | |
| 23.3(b) | Consent of Gray Cary Ware & Freidenrich LLP (included as part of Exhibit 5.1 hereto) | |
| 24.1(b) | Power of Attorney (see page II-8 of the original filing of this Registration Statement) | |
| (a) | To be filed by amendment. |
| (b) | Previously filed. |
| (c) | Confidential treatment requested as to certain portions, which portions are omitted and filed separately with the Commission. |
