As filed with the Securities and Exchange Commission on March 8, 2000
Registration No. 333-31770
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
Amendment No. 1
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PREDICTIVE SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 7371 13-3808483
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation) or Organization) Classification Code Number) Identification Number)
---------------------
145 Hudson Street
New York, New York 10013
(212) 219-4400
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
---------------------
Gary N. Papilsky, Esq.
Vice President and General Counsel
Predictive Systems, Inc.
145 Hudson Street
New York, NY 10013
(212) 219-4400
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agents for Service)
---------------------
Copies to:
Babak Yaghmaie, Esq. Philip P. Rossetti, Esq.
Brobeck, Phleger & Harrison LLP Hale and Dorr LLP
1633 Broadway, 47th Floor 60 State Street
New York, New York 10019 Boston, Massachusetts 02109
(212) 581-1600 (617) 526-6000
---------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement becomes
effective.
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,
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 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.
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than the
underwriting discounts and commissions, payable by the registrant in connection
with the issuance and distribution of the common stock being registered. All
amounts are estimates except the SEC registration fee, the NASD filing fee and
the Nasdaq National Market listing fee.
Amount to
be Paid
----------
SEC registration fee ...................................... $ 67,491
NASD filing fee ........................................... 26,065
Nasdaq National Market listing fee ........................ 17,500
Legal fees and expenses ................................... 200,000
Accounting fees and expenses .............................. 200,000
Printing and engraving expenses ........................... 200,000
Blue sky fees and expenses (including legal fees) ......... 10,000
Transfer Agent and Registrar fees and expenses ............ 20,000
Miscellaneous ............................................. 73,944
--------
Total ................................................. $815,000
========
Item 14. Indemnification of Directors and Officers
The Registrant's Amended and Restated Certificate of Incorporation in
effect as of the date hereof (the "Certificate") provides that, except to the
extent prohibited by the Delaware General Corporation Law, as amended (the
"DGCL"), the Registrant's directors shall not be personally liable to the
Registrant or its stockholders for monetary damages for any breach of fiduciary
duty as directors of the Registrant. Under the DGCL, the directors have a
fiduciary duty to the Registrant which is not eliminated by this provision of
the Certificate and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of nonmonetary relief will remain available. In
addition, each director will continue to be subject to liability under the DGCL
for breach of the director's duty of loyalty to the Registrant, for acts or
omissions which are found by a court of competent jurisdiction to be not in
good faith or involving intentional misconduct, for knowing violations of law,
for actions leading to improper personal benefit to the director, and for
payment of dividends or approval of stock repurchases or redemptions that are
prohibited by the DGCL. This provision also does not affect the directors'
responsibilities under any other laws, such as the Federal securities laws or
state or Federal environmental laws. The Registrant maintains liability
insurance for its officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its directors
and officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that this
provision shall not eliminate or limit the liability of a director: (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) arising under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise. The
Certificate eliminates the personal liability of directors to the fullest
extent permitted by Section 102(b)(7) of the DGCL and provides that the
Registrant may fully 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 (whether civil, criminal, administrative or investigative)
by reason of the fact that such person is or was a director or officer of the
Registrant, or is or was serving at the request of the Registrant as a
II-1
director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent as to which indemnification will be
required or permitted under the Certificate. The Registrant is not aware of any
threatened litigation or proceeding that may result in a claim for such
indemnification.
Item 15. Recent Sales of Unregistered Securities
The Registrant has sold and issued the following securities since January
1, 1996:
1. On March 5, 1999, the Registrant issued 6,512,316 shares of Series A
Convertible Preferred Stock for an aggregate amount of $18,565,225.44 in
a private placement to six accredited investors in reliance upon the
exemption from registration provided by Section 4(2) of the Securities
Act of 1933 as amended (the "Securities Act").
2. On March 5, 1999, the Registrant issued warrants to purchase 15% of the
number of shares registered in its initial public offering at the initial
public offering price for an aggregate amount of $1,000 in a private
placement to two accredited investors in reliance upon the exemption from
registration provided by Section 4(2) of the Securities Act.
3. On August 12, 1999, the Registrant issued 1,062,814 shares of common
stock to two persons in exchange for all of the outstanding capital stock
of Network Resource Consultants and Company, B.V. in reliance upon the
exemption from registration provided by Section 4(2).
4. On September 16, 1999, the Registrant issued 1,242,000 shares of common
stock to Cisco Systems, Inc., an accredited investor, in a private
placement for an aggregate amount of $14,904,000 in reliance upon the
exemption from registration provided by Section 4(2) of the Securities
Act.
5. On September 22, 1999, the Registrant issued 94,867 and 18,133 shares of
common stock to General Atlantic Partners 57, L.P. and GAP Coinvestment
Partners II, L.P., both accredited investors, in a private placement for
an aggregate amount of $1,356,000 in reliance upon the exemption from
registration provided by Section 4(2) of the Securities Act.
6. The Registrant from time to time has granted stock options to employees,
directors and consultants in reliance upon exemption from registration
pursuant to either (i) issuances to accredited investors in private
placements pursuant to Section 4(2) of the Securities Act, or (ii)
issuances to employees, directors and consultants for services pursuant
to Rule 701 promulgated under the Securities Act. The following table
sets forth certain information regarding such grants:
Number of Exercise
Shares Prices
----------- -----------------
January 1, 1996 to December 31, 1996 ......... 1,560,000 $ 0.50-$ 0.83
January 1, 1997 to December 31, 1997 ......... 3,856,800 $ 0.83-$ 1.25
January 1, 1998 to December 31, 1998 ......... 2,427,000 $ 1.25-$ 1.50
January 1, 1999 to present ................... 2,980,363 $ 1.50-$11.05
No underwriters were involved in connection with the sales of securities
referred to in this Item 15.
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Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
Number Description
- --------------- -------------------------------------------------------------------------------------------
1.1* Form of underwriting agreement.
3.1# Amended and Restated Certificate of Incorporation.
3.2## Amended and Restated By-laws.
4.1+ Specimen common stock certificate.
4.2 See Exhibits 3.1 and 3.2 for provisions of the Amended and Restated Certificate of
Incorporation and Amended and Restated By-laws of the Registrant defining the rights of
holders of Common Stock of the Registrant.
4.3+ Stock Purchase Warrant, dated March 5, 1999, by and between General Atlantic Partners
54, L.P. and the Registrant.
4.4+ Stock Purchase Warrant, dated March 5, 1999, by and between GAP Coinvestment
Partners II, L.P. and the Registrant.
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1+ 1999 Stock Incentive Plan.
10.2+ 1999 Employee Stock Purchase Plan.
10.4+ Employment Agreement, dated May 11, 1999, by and between Ronald Pettengill and the
Registrant.
10.5+ Employment Agreement, dated May 11, 1999, by and between Robert Belau and the
Registrant.
10.6+ Employment Agreement, dated January 22, 1999, by and between Kevin Holt and the
Registrant.
10.7+ Registration Rights Agreement, dated March 5, 1999.
10.8+ Secured Promissory Note, dated August 31, 1998, in favor of Brown Brothers Harriman & Co.
10.9+ Agreement of Lease, dated June 25, 1999, by and between the Registrant and Polestar
Fifth Property Associates LLC.
10.10** Development and License Agreement, dated July 29, 1998, by and between Bear, Stearns
& Co. Inc. and the Registrant.
10.10.1@ Statements of Work, by and between Bear, Stearns & Co. Inc. and the Registrant, entered
into pursuant to the Development and License Agreement included as Exhibit 10.10.
10.12** Consulting Services Agreement, dated October 15, 1998, by and between First Union
Corporation and the Registrant.
10.12.1@ Statement of Work, by and between First Union Corporation and the Registrant, entered
into pursuant to the Consulting Services Agreement included as Exhibit 10.12.
10.13** Strategic Partnering Agreement, dated July 30, 1999, by and between Cabletron Systems
Inc. and the Registrant.
10.14** Systems Integration Consulting Services Agreement, dated May 21, 1998, by and between
LCI International Telecom Corp. dba Qwest Communications Corporation and the
Registrant.
10.15+ Amendment No. 1 to Consulting Services Agreement dated June 21, 1999, to Systems
Integration Consulting Services Agreement, dated May 21, 1998, by and between LCI
International Telecom Corp. dba Qwest Communications Corporation and the Registrant.
10.15.1@ Statements of Work, by and between Qwest Communications Corporation and the
Registrant, entered into pursuant to the Consulting Services Agreement included as Exhibit
10.14, as amended by Amendment No. 1 thereto included as Exhibit 10.15.
10.16+ Stock and Warrant Purchase Agreement, dated March 5, 1999, by and among General
Atlantic Partners 54, L.P., GAP Coinvestment Partners II, L.P., the Other Purchasers
named therein and the Registrant.
10.17+ Service Agreement, dated January 1, 1999, by and between John Wright and Predictive
Limited.
II-3
Number Description
- ------------- ----------------------------------------------------------------------------------------
10.18+ Common Stock Purchase Agreement, dated September 16, 1999, by and between Cisco
Systems, Inc. and the Registrant.
10.19+ Investor's Rights Agreement, dated September 16, 1999, by and between Cisco Systems,
Inc. and the Registrant.
10.20** Professional Services Subcontract, dated May 14, 1999, by and between Cisco Systems,
Inc. and the Registrant.
10.20.1@ Statements of Work, by and between Cisco Systems, Inc. and the Registrant, entered into
pursuant to the Professional Services Subcontract included as Exhibit 10.20.
10.21+ Common Stock Purchase Agreement, dated September 22, 1999, by and among General
Atlantic Partners 57, L.P., GAP Coinvestment Partners II, L.P. and the Registrant.
10.22+ Amendment No. 1 to the Registration Rights Agreement, dated March 5, 1999, dated
September 22, 1999.
10.23+ Employment Agreement, dated September 21, 1999 by and between Gerard Dorsey and
the Registrant.
10.24+ Amendment No. 1 to Common Stock Purchase Agreement, dated September 27, 1999, by
and between Cisco Systems, Inc. and the Registrant.
10.25@ Master Professional Services Agreement, dated May 14, 1999, by and between BellSouth
MNS, Inc. and the Registrant.
10.25.1@ Statements of Work, by and between BellSouth MNS, Inc. and the Registrant, entered into
pursuant to the Master Professional Services Agreement included as Exhibit 10.25.
10.26 Service Agreement, dated February 1, 2000, by and between Cisco Systems, Inc. and the
Registrant.
23.1 Consent of Arthur Andersen LLP.
23.2* Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5.1).
23.3 Consent of Arthur Andersen LLP.
24.1! Powers of attorney.
27.1* Financial Data Schedule.
- ------------
# Incorporated by reference to Exhibit 3.2 of Predictive's Registration
Statement on Form S-1, No. 333-84045 ("Registration Statement No.
333-84045").
## Incorporated by reference to Exhibit 3.4 of Registration Statement No.
333-84045.
+ Incorporated by reference to the indentically numbered exhibit of
Registration Statement No. 333-84045.
* To be filed by amendment.
** Non-confidential portions of this Exhibit were filed as the identically
numbered Exhibit of Registration Statement No. 333-84045, which
non-confidential portions are incorporated herein by reference.
Confidential treatment was granted for certain portions of this Exhibit
pursuant to Rule 406 promulgated under the Securities Act. Confidential
portions of this Exhibit have been filed separately with the Securities and
Exchange Commission.
@ Confidential treatment has been requested for certain portions of this
Exhibit pursuant to Rule 406 promulgated under the Securities Act.
Confidential portions of this Exhibit have been filed separately with the
Securities and Exchange Commission.
! Previously filed.
(b) Financial Statement Schedules.
Schedule II-Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or related notes.
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting agreement,
certificates in such denominations and registered in such names as required by
the underwriters to permit prompt delivery to each purchaser.
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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 of 1933, 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 this offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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 foregoing provisions, 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
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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 this 8th day of
March, 2000.
PREDICTIVE SYSTEMS, INC.
By: /s/ Ronald G. Pettengill, Jr.
-------------------------
Name: Ronald G. Pettengill, Jr.
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated.
Signature Title(s) Date
- ------------------------------- -------------------------------------------------- --------------
/s/ Ronald G. Pettengill, Jr. Chief Executive Officer and Chairman of the March 8, 2000
- ------------------------- Board of Directors (principal executive officer)
Ronald G. Pettengill, Jr.
/s/ Robert L. Belau President and Director March 8, 2000
- -------------------------
Robert L. Belau
/s/ Gerard E. Dorsey Chief Financial Officer (principal financial and March 8, 2000
- ------------------------- accounting officer)
Gerard E. Dorsey
* Director March 8, 2000
- -------------------------
Peter L. Bloom
* Director March 8, 2000
- -------------------------
Donald J. Duffy
* Director March 8, 2000
- -------------------------
Braden R. Kelly
* Director March 8, 2000
- -------------------------
Eric Meyer
* Director March 8, 2000
- -------------------------
Inder Sidhu
* Director March 8, 2000
- -------------------------
William W. Wyman
By: /s/ Robert L. Belau March 8, 2000
-----------------------------
Robert L. Belau, Attorney-in-Fact
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INDEX TO EXHIBITS
Number Description
- --------------- ----------------------------------------------------------------------------------------
1.1* Form of underwriting agreement.
3.1# Amended Restated Certificate of Incorporation.
3.2## Amended and Restated By-laws.
4.1+ Specimen common stock certificate.
4.2 See Exhibits 3.1 and 3.2 for provisions of the Amended and Restated Certificate of
Incorporation and Amended and Restated By-laws of the Registrant defining the rights
of holders of Common Stock of the Registrant.
4.3+ Stock Purchase Warrant, dated March 5, 1999, by and between General Atlantic
Partners 54, L.P. and the Registrant.
4.4+ Stock Purchase Warrant, dated March 5, 1999, by and between GAP Coinvestment
Partners II, L.P. and the Registrant.
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1+ 1999 Stock Incentive Plan.
10.2+ 1999 Employee Stock Purchase Plan.
10.4+ Employment Agreement, dated May 11, 1999, by and between Ronald Pettengill and the
Registrant.
10.5+ Employment Agreement, dated May 11, 1999, by and between Robert Belau and the
Registrant.
10.6+ Employment Agreement, dated January 22, 1999, by and between Kevin Holt and the
Registrant.
10.7+ Registration Rights Agreement, dated March 5, 1999.
10.8+ Secured Promissory Note, dated August 31, 1998, in favor of Brown Brothers Harriman & Co.
10.9+ Agreement of Lease, dated June 25, 1999, by and between the Registrant and Polestar
Fifth Property Associates LLC.
10.10** Development and License Agreement, dated July 29, 1998, by and between Bear,
Stearns & Co. Inc. and the Registrant.
10.10.1@ Statements of Work, by and between Bear, Stearns & Co. Inc. and the Registrant,
entered into pursuant to the Development and License Agreement included as Exhibit 10.10.
10.12** Consulting Services Agreement, dated October 15, 1998, by and between First Union
Corporation and the Registrant.
10.12.1@ Statement of Work, by and between First Union Corporation and the Registrant, entered
into pursuant to the Consulting Services Agreement included as Exhibit 10.12.
10.13** Strategic Partnering Agreement, dated July 30, 1999, by and between Cabletron
Systems Inc. and the Registrant.
10.14** Systems Integration Consulting Services Agreement, dated May 21, 1998, by and
between LCI International Telecom Corp. dba Qwest Communications Corporation and
the Registrant.
10.15+ Amendment No. 1 to Consulting Services Agreement dated June 21, 1999, to Systems
Integration Consulting Services Agreement, dated May 21, 1998, by and between LCI
International Telecom Corp. dba Qwest Communications Corporation and the Registrant.
10.15.1@ Statements of Work, by and between Qwest Communications Corporation and the
Registrant, entered into pursuant to the Consulting Services Agreement included as
Exhibit 10.14, as amended by Amendment No. 1 thereto included as Exhibit 10.15.
10.16+ Stock and Warrant Purchase Agreement, dated March 5, 1999, by and among General
Atlantic Partners 54, L.P., GAP Coinvestment Partners II, L.P., the Other Purchasers
named therein and the Registrant.
10.17+ Service Agreement, dated January 1, 1999, by and between John Wright and Predictive
Limited.
Number Description
- ----------------- -----------------------------------------------------------------------------------
10.18+ Common Stock Purchase Agreement, dated September 16, 1999, by and between
Cisco Systems, Inc. and the Registrant.
10.19+ Investor's Rights Agreement, dated September 16, 1999, by and between Cisco
Systems, Inc. and the Registrant.
10.20** Professional Services Subcontract, dated May 14, 1999, by and between Cisco
Systems, Inc. and the Registrant.
10.20.1@ Statements of Work, by and between Cisco Systems, Inc. and the Registrant, entered
into pursuant to the Professional Services Subcontract included as Exhibit 10.20.
10.21+ Common Stock Purchase Agreement, dated September 22, 1999, by and among
General Atlantic Partners 57, L.P., GAP Coinvestment Partners II, L.P. and the
Registrant.
10.22+ Amendment No. 1 to the Registration Rights Agreement, dated March 5, 1999, dated
September 22, 1999.
10.23+ Employment Agreement, dated September 21, 1999 by and between Gerard Dorsey and
the Registrant.
10.24+ Amendment No. 1 to Common Stock Purchase Agreement, dated September 27, 1999,
by and between Cisco Systems, Inc. and the Registrant.
10.25@ Master Professional Services Agreement, dated May 14, 1999, by and between
BellSouth MNS, Inc. and the Registrant.
10.25.1@ Statements of Work, by and between BellSouth MNS, Inc. and the Registrant, entered into
pursuant to the Master Professional Services Agreement included as Exhibit 10.25.
10.26 Service Agreement, dated February 1, 2000, by and between Cisco Systems, Inc. and
the Registrant.
23.1 Consent of Arthur Andersen LLP.
23.2* Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5.1).
23.3 Consent of Arthur Andersen LLP.
24.1! Powers of attorney.
27.1* Financial Data Schedule.
- ------------
# Incorporated by reference to Exhibit 3.2 of Predictive's Registration
Statement on Form S-1, No. 333-84045 ("Registration Statement
No. 333-84045").
## Incorporated by reference to Exhibit 3.4 of Registration Statement No.
333-84045.
+ Incorporated by reference to the identically numbered exhibit of
Registration Statement No. 333-84045.
* To be filed by amendment.
** Non-confidential portions of this Exhibit were filed as the identically
numbered Exhibit of Registration Statement No. 333-84045, which
non-confidential portions are incorporated herein by reference.
Confidential treatment was granted for certain portions of this Exhibit
pursuant to Rule 406 promulgated under the Securities Act. Confidential
portions of this Exhibit have been filed separately with the Securities and
Exchange Commission.
@ Confidential treatment has been requested for certain portions of this
Exhibit pursuant to Rule 406 promulgated under the Securities Act.
Confidential portions of this Exhibit have been filed separately with the
Securities and Exchange Commission.
! Previously filed.