As filed with the Securities and Exchange Commission on February 9, 2000
Registration No. 333-95377
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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Amendment No. 1 to
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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NOOSH, INC.
(Exact name of registrant as specified in its charter)
Delaware 7379 77-0495080
(State or other
jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or
organization) Classification Code Number) Identification Number)
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3401 Hillview Avenue, Palo Alto, California, 94304
(650) 320-6000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Ofer Ben-Shachar
President, Chief Executive Officer and Chairman
3401 Hillview Avenue, Palo Alto, California 94304
(650) 320-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies To:
Laura A. Berezin, Esq. Steven B. Stokdyk, Esq.
Cooley Godward LLP Sullivan & Cromwell
Five Palo Alto Square 1888 Century Park East Blvd., 21st Floor
3000 El Camino Real Los Angeles, California 90067
Palo Alto, CA 94306-2155 (310) 712-6600
(650) 843-5000
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after 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, 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) 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 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,
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 that 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.
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EXPLANATORY NOTE
The purpose of this Amendment No. 1 to the Registration Statement is to file
certain exhibits to the Registration Statement, as set forth in Item 16(a) of
Part II.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses, other than the underwriting
discounts and commissions, payable by us in connection with the sale of the
common stock being registered. All the amounts shown are estimates except for
the registration fee, the NASD filing fee and the Nasdaq National Market
application fee.
Registration fee................................................. $ 15,312
NASD filing fee.................................................. 6,300
Nasdaq National Market application fee........................... 95,000
Blue sky qualification fee and expenses.......................... 20,000
Printing and engraving expenses.................................. 250,000
Legal fees and expenses.......................................... 500,000
Accounting fees and expenses..................................... 250,000
Transfer agent and registrar fees................................ 15,000
Miscellaneous.................................................... 48,388
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Total............................................................ $1,200,000
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Item 14. Indemnification of Officers and Directors.
As permitted by Delaware law, our amended and restated certificate of
incorporation provides that no director of ours will be personally liable to
us or our stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability for:
. any breach of duty of loyalty to us or to our stockholders;
. acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law;
. unlawful payment of dividends or unlawful stock repurchases or redemptions;
or
. any transaction from which the director derived an improper personal
benefit.
Our amended and restated certificate of incorporation further provides that
we must indemnify our directors and officers and may indemnify our other
employees and agents to the fullest extent permitted by Delaware law. We
believe that indemnification under our amended and restated certificate of
incorporation covers negligence and gross negligence on the part of
indemnified parties.
We intend to enter into indemnification agreements with each of our
directors and executive officers. These agreements, among other things,
require us to indemnify each director and executive officer for some expenses
including attorneys' fees, judgments, fines and settlement amounts incurred by
any of these persons in any action or proceeding, including any action by or
in the right of NOOSH, arising out of these persons' services as our director
or executive officer, any subsidiary of ours or any other company or
enterprise to which the person provides services at our request.
The underwriting agreement will provide for indemnification by the
underwriters of NOOSH, our directors, our officers who sign the registration
statement, and our controlling persons for some liabilities, including
liabilities arising under the securities act.
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Item 15. Recent Sales of Unregistered Securities.
Since inception, we have sold and issued the following unregistered
securities:
(1) From August 15, 1998 to January 25, 2000, we have granted stock
options to purchase 7,137,435 shares of the our common stock to employees,
consultants and directors pursuant to our 1998 equity incentive plan. Of
these stock options, 73,100 shares have been cancelled without being
exercised, 3,025,428 shares have been exercised, 0 have been repurchased
and 4,038,907 shares remain outstanding.
(2) In August 1998, we issued an aggregate of 40,000 shares of common
stock to one purchaser at $0.00125 per share for an aggregate purchase
price of $50.
(3) In August 1998, we issued an aggregate of 4,000,000 shares of common
stock to Ofer Ben-Shachar at $0.00125 per share for an aggregate purchase
price of $5,000.
(4) In September 1998, we issued an aggregate of 4,000,000 shares of
common stock to Ofer Ben-Shachar at $0.00125 per share for an aggregate
purchase price of $5,000.
(5) In November 1998, we issued an aggregate of 2,023,077 shares of
Series A preferred stock to twelve purchasers at $0.65 per share for an
aggregate purchase price of $1,315,000. Shares of Series A preferred stock
are convertible into shares of common stock at the rate of two shares of
common stock for each share of Series A preferred stock owned.
(6) In January 1999 through March 1999, we issued an aggregate of 76,986
shares of common stock to four consultants at $0.325 per share for an
aggregate purchase price of $2,502.
(7) In April 1999, we issued an aggregate of 4,363,637 shares of Series B
preferred stock to twenty-two purchasers at $2.75 per share for an
aggregate purchase price of $12,000,002. Shares of Series B preferred stock
are convertible into shares of common stock at the rate of two shares of
common stock for each share of Series B preferred stock owned.
(8) On September 15, 1999, we issued an aggregate of 13,216 shares of
common stock to six consultants at $0.80 per share for an aggregate
purchase price of $10,573.
(9) On October 8, 1999, we issued an aggregate of 11,609 shares of common
stock to eight consultants at $1.00 per share for an aggregate purchase
price of $11,609.
(10) On October 15, 1999, we issued an aggregate of 19,000 shares of
common stock to one employee as consideration with an aggregate fair market
value of $19,000 under a technology transfer agreement.
(11) On November 1, 1999, we issued an aggregate of 5,727 shares of
common stock to two consultants at $1.25 per share for an aggregate
purchase price of $7,159.
(12) In November 1999, we issued an aggregate of 6,809,135 shares of
Series C preferred stock to thirty-nine purchasers at $7.45 per share for
an aggregate purchase price of $50,728,056. Shares of Series C preferred
stock are convertible into shares of common stock at the rate of one share
of common stock for each share of Series C preferred stock owned.
(13) On November 15, 1999, we issued an aggregate of 33,865 shares of
common stock to four consultants at $1.50 per share for an aggregate
purchase price of $50,798.
(14) On November 30, 1999, we issued an aggregate of 847 shares of common
stock to three consultants at $1.75 per share for an aggregate purchase
price of $1,482.
(15) On December 30, 1999, we issued two warrants to two purchasers to
purchase an aggregate of 495,000 shares of common stock. A portion of the
first warrant, for a total of 140,000 shares, became immediately
exercisable upon issuance at an exercise price of $7.45. A portion of the
second warrant, for a total of 75,000 shares, became immediately
exercisable upon
II-2
issuance at an exercise price of $11.00. The remaining portions of the
warrants are exercisable when the print vendors meet stated volume targets
for business conducted over our service at exercise prices ranging from
$7.45 per share to the fair market value of our common stock on the date
the volume targets are met.
(16) On December 31, 1999, we issued an aggregate of 13,203 shares of
common stock to seven consultants for an aggregate purchase price of
$29,707.
(17) On January 14, 2000, we issued one warrant to one purchaser to
purchase an aggregate of 50,000 shares of common stock at an exercise price
of $11.00 per share.
(18) On January 25, 2000 we issued 1,418,182 shares of Series D preferred
stock to three purchasers at $11.00 per share for a total of $15,600,002.
Shares of Series D preferred stock are convertible into shares of common
stock at the rate of one share of common stock for each share of Series D
preferred stock owned. In addition, we issued two warrants to purchase an
aggregate of 2,780,159 shares of common stock at an exercise price of
$11.00 per share. A total of 961,309 shares of common stock are immediately
exercisable under the warrants. The remaining shares under the warrants are
exercisable when the holder meets stated volume targets for business
conducted over our service.
With respect to the grant of stock options described in paragraph (1), an
exemption from registration was unnecessary in that none of the transactions
involved a "sale" of securities as this term is used in Section 2(3) of the
Securities Act. The sale and issuance of securities and the exercise of
options described in paragraphs (1), (6), (8), (9), (11), (13), (14) and (15)
above were deemed to be exempt from registration under the Securities Act by
virtue of Rule 701 promulgated thereunder in that they were offered and sold
either pursuant to a written compensatory benefit plan or pursuant to a
written contract relating to compensation, as provided in Rule 701. The sale
and issuance of securities described in paragraphs (2), (3), (4), (5), (7),
(10), (12), (16), (17) and (18) above were deemed to be exempt from
registration under the Securities Act by virtue of Rule 4(2) or Regulation D
promulgated thereunder.
Appropriate legends are affixed to the stock certificates issued in the
aforementioned transactions. Similar legends were imposed in connection with
any subsequent sales of any of these securities. All recipients either
received adequate information about NOOSH or had access, through employment or
other relationships, to such information.
II-3
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
Exhibit
Number Description of Document
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1.1* Form of Underwriting Agreement.
3.1** Certificate of Incorporation of Registrant, as currently in effect.
3.2** Form of Amended and Restated Certificate of Incorporation of
Registrant to be filed upon the closing of the offering made pursuant
to this Registration Statement.
3.3** Bylaws of the Registrant as currently in effect.
4.1* Specimen Common Stock Certificate.
4.2** Amended and Restated Investor Rights Agreement dated January 25, 2000
between Registrant and holders of the Registrant's Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock.
4.3+ Warrant for the Purchase of 225,000 shares of Common Stock issued to
Consolidated Graphics, Inc. dated December 30, 1999.
4.4+ Warrant for the Purchase of 270,000 shares of Common Stock issued to
Wallace Computer Services, Inc. dated December 30, 1999.
4.5+ Warrant for the Purchase of 50,000 shares of Common Stock issued to
Bank of America Technology and Operations, Inc. dated January 14,
2000.
4.6+ Warrant for the Purchase of 2,430,158 shares of Common Stock issued to
R.R. Donnelley & Sons Company dated January 25, 2000.
4.7+ Warrant for the Purchase of 350,000 shares of Common Stock issued to
R.R. Donnelley & Sons Company dated January 25, 2000.
5.1* Opinion of Cooley Godward LLP.
10.1** Form of Indemnity Agreement.
10.2** 1998 Equity Incentive Plan and related documents.
10.3** 2000 Equity Incentive Plan and related documents.
10.4** 2000 Employee Stock Purchase Plan.
10.5** 2000 Non-Employee Directors Stock Option Plan and related documents.
10.6** Lease Agreement, dated April 1, 1999, between Registrant and Syntex
(U.S.A.) Inc.
10.7** Sublease Agreement, dated November 1, 1999, between the Registrant and
Xerox Corporation.
10.8** Promissory Note, dated April 15, 1999, between Registrant and David
Hannebrink.
10.9** Promissory Note, dated October 8, 1999, between Registrant and Hagi
Schwartz.
10.10** Promissory Note, dated November 1, 1999, between Registrant and David
Hannebrink.
10.11* Promissory Note, dated January 3, 2000, between Registrant and Kevin
Akeroyd.
10.12* Promissory Note, dated January 3, 2000, between Registrant and Ray
Martinelli.
10.13* Promissory Note, dated January 3, 2000, between Registrant and Timothy
Moore.
10.14* Promissory Note, dated January 15, 2000, between Registrant and Steven
Baloff.
10.15* Promissory Note, dated January 15, 2000, between Registrant and David
Hannebrink.
10.16* Promissory Note, dated January 15, 2000 between Registrant and Robert
Shaw.
10.17+ Co-Development and Marketing Agreement, dated as of January 25, 2000,
between the Registrant and R.R. Donnelley & Sons Company.
23.1 Consent of Independent Accountants.
23.2* Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1** Power of Attorney.
27.1** Financial Data Schedule.
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* To be filed by amendment.
** Previously filed.
+ Confidential treatment has been requested for a portion of this exhibit.
(b) Financial Statement Schedules.
Schedules are omitted because they are not applicable, or because the
information is included in the Financial Statements or the Notes thereto.
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Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) That for purposes of determining any liability under the Securities
Act, the information omitted from the form of this prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) That for purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of the securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) 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 referenced in Item 15
of this Registration Statement or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission this
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against these 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 a director, officer, or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether the indemnification by it is against
public policy as expressed in the Securities Act of 1933, and will be
governed by the final adjudication of this issue.
(4) To provide to the Underwriters at the closing specified in the
Underwriting Agreement certificates in the denomination and registered in
the names required by the Underwriters to permit prompt delivery to each
purchaser.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has caused this Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the County of Santa
Clara, State of California, on the 9th day of February, 2000.
NOOSH, Inc.
*
By: _________________________________
Ofer Ben-Shachar
President, Chief Executive
Officer and Chairman
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
Signatures Title Date
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* President, Chief Executive February 9, 2000
______________________________________ Officer and Chairman of
Ofer Ben-Shachar the Board of Directors
(principal executive
officer)
/s/ Hagi Schwartz Vice President and Chief February 9, 2000
______________________________________ Financial Officer
Hagi Schwartz (principal financial and
accounting officer)
* Director February 9, 2000
______________________________________
Steven Baloff
* Director February 9, 2000
______________________________________
Arthur Patterson
* Director February 9, 2000
______________________________________
Kathy Levinson
/s/ Hagi Schwartz
*By: ____________________________
Name:
Hagi Schwartz
Attorney-in-Fact
II-6
EXHIBIT INDEX
Exhibit
Number Description of Document
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1.1* Form of Underwriting Agreement.
3.1** Certificate of Incorporation of Registrant, as currently in effect.
3.2** Form of Amended and Restated Certificate of Incorporation of
Registrant to be filed upon the closing of the offering made pursuant
to this Registration Statement.
3.3** Bylaws of the Registrant as currently in effect.
4.1* Specimen Common Stock Certificate.
4.2** Amended and Restated Investor Rights Agreement dated January 25, 2000
between Registrant and holders of the Registrant's Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock.
4.3+ Warrant for the Purchase of 225,000 shares of Common Stock issued to
Consolidated Graphics, Inc. dated December 30, 1999.
4.4+ Warrant for the Purchase of 270,000 shares of Common Stock issued to
Wallace Computer Services, Inc. dated December 30, 1999.
4.5+ Warrant for the Purchase of 50,000 shares of Common Stock issued to
Bank of America Technology and Operations, Inc. dated January 14,
2000.
4.6+ Warrant for the Purchase of 2,430,158 shares of Common Stock issued to
R.R. Donnelley & Sons Company dated January 25, 2000.
4.7+ Warrant for the Purchase of 350,000 shares of Common Stock issued to
R.R. Donnelley & Sons Company dated January 25, 2000.
5.1* Opinion of Cooley Godward LLP.
10.1** Form of Indemnity Agreement.
10.2** 1998 Equity Incentive Plan and related documents.
10.3** 2000 Equity Incentive Plan and related documents.
10.4** 2000 Employee Stock Purchase Plan.
10.5** 2000 Non-Employee Directors Stock Option Plan and related documents.
10.6** Lease Agreement, dated April 1, 1999, between Registrant and Syntex
(U.S.A.) Inc.
10.7** Sublease Agreement, dated November 1, 1999, between the Registrant and
Xerox Corporation.
10.8** Promissory Note, dated April 15, 1999, between Registrant and David
Hannebrink.
10.9** Promissory Note, dated October 8, 1999, between Registrant and Hagi
Schwartz.
10.10** Promissory Note, dated November 1, 1999, between Registrant and David
Hannebrink.
10.11* Promissory Note, dated January 3, 2000, between Registrant and Kevin
Akeroyd.
10.12* Promissory Note, dated January 3, 2000, between Registrant and Ray
Martinelli.
10.13* Promissory Note, dated January 3, 2000, between Registrant and Timothy
Moore.
10.14* Promissory Note, dated January 15, 2000, between Registrant and Steven
Baloff.
10.15* Promissory Note, dated January 15, 2000, between Registrant and David
Hannebrink.
10.16* Promissory Note, dated January 15, 2000 between Registrant and Robert
Shaw.
10.17+ Co-Development and Marketing Agreement, dated as of January 25, 2000,
between the Registrant and R.R. Donnelley & Sons Company.
23.1 Consent of Independent Accountants.
23.2* Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1** Power of Attorney.
27.1** Financial Data Schedule.
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* To be filed by amendment.
** Previously filed.
+ Confidential treatment has been requested for a portion of this exhibit.