As filed with the Securities and Exchange Commission on March 21, 2000
Registration No. 333-31686
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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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ANNUNCIO SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
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California (before 7389 94-3278563
reincorporation) (Primary Standard Industrial (I.R.S. Employer
Delaware (after Classification Code Number)Identification Number)
reincorporation)
(State or other
jurisdiction of
incorporation or
organization)
Annuncio Software, Inc.
2440 El Camino Real, Suite 300
Mountain View, CA 94040
(650) 314-6000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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Didier Moretti
Chief Executive Officer
Annuncio Software, Inc.
2440 El Camino Real, Suite 300
Mountain View, CA 94040
(650) 314-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Page Mailliard Robert A. Koenig
Jonathan D. Levy Namee Lee
Lynn Y. Hashimoto Latham & Watkins
Deanna M. Butler 135 Commonwealth Drive
Wilson Sonsini Goodrich & Rosati Menlo Park, CA 94025
Professional Corporation (650) 328-4600
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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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, 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. [_]
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Amount of
Title of Each Class of Securities to be Aggregate Registration
Registered Offering Price(1)(2) Fee(3)
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Common stock, $0.0001 par value................ $46,000,000 $12,144
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(1) Includes shares which the underwriters have the option to purchase to
cover over-allotments, if any.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(o) under the Securities Act of 1933.
(3) $12,144 was previously paid.
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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.
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The purpose of this Amendment No.1 is solely to file certain exhibits to
the Registration Statement as set forth below 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 fees and expenses payable by Annuncio
in connection with the registration of the common stock hereunder. All of the
amounts shown are estimates except for the SEC registration fee and the NASD
filing fee.
Amount
To Be Paid
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SEC Registration Fee............................................ $ 12,144
NASD Filing Fee................................................. 5,100
Nasdaq National Market Listing Fee.............................. 95,000
Printing and Engraving Expenses................................. 200,000
Legal Fees and Expenses......................................... 500,000
Accounting Fees and Expenses.................................... 300,000
Transfer Agent and Registrar Fees and Expenses.................. 15,000
Miscellaneous Expenses.......................................... 72,756
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Total...................................................... $1,200,000
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law allows for the
indemnification of officers, directors and any corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act. Our certificate of incorporation and our bylaws provide for
indemnification of our directors, officers, employees and other agents to the
extent and under the circumstances permitted by the Delaware General
Corporation Law. We have also entered into agreements with our directors and
executive officers that require Annuncio among other things to indemnify them
against certain liabilities that may arise by reason of their status or
service as directors and executive officers to the fullest extent permitted by
Delaware law. We have also purchased directors and officers liability
insurance, which provides coverage against certain liabilities including
liabilities under the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
(a) Since August 1997, we have issued and sold the securities described
below:
(1) In August 1997, we issued and sold an aggregate of 7,500,000 shares
of unregistered common stock at a price per share of $0.000667 to our two
founders, Didier Moretti and Maurizio Gianola, for an aggregate cash
consideration of approximately $5,000. We relied upon Section 4(2) of the
Securities Act of 1933 in connection with the issuance of these
securities.
(2) In September and October 1997, we issued and sold 7,429,689 shares
of unregistered Series A preferred stock at a price per share of $0.4267
to nine investors for aggregate cash consideration of approximately
$3,170,000. These shares were sold pursuant to a Series A preferred stock
purchase agreement between such investors and us. We relied upon Section
4(2) of the Securities Act of 1933 and Regulation D, Rule 506, in
connection with the sale of these securities. The sale of Series A
preferred stock was made in compliance with all the terms of Rules 501 and
502 of Regulation D, there were no more than 35 investors, as calculated
pursuant to Rule 501(e) of Regulation D, and each investor who was not an
accredited investor represented to us that it had such knowledge and
experience in financial and business matters that it was capable of
evaluating the merits and risks of the investment.
II-1
(3) In July 1998, we issued and sold 5,071,428 shares of unregistered
Series B preferred stock at a price per share of $0.70 to nine investors
for aggregate cash consideration of approximately $3,550,000. These shares
were sold pursuant to a Series B preferred stock purchase agreement
between such investors and us. We relied upon Section 4(2) of the
Securities Act of 1933 and Regulation D, Rule 506, in connection with the
sale of these securities. The sale of Series B preferred stock was made in
compliance with all the terms of Rules 501 and 502 of Regulation D, there
were no more than 35 investors, as calculated pursuant to Rule 501(e) of
Regulation D, and each investor who was not an accredited investor
represented to us that it had such knowledge and experience in financial
and business matters that it was capable of evaluating the merits and
risks of the investment.
(4) In August 1998, in connection with obtaining a line of credit, we
issued unregistered warrants to purchase an aggregate of 21,427 shares of
Series B preferred stock, with an exercise price per share of $0.70, to
Comdisco, Inc. We relied upon Section 4(2) of the Securities Act of 1933
and Regulation D, Rule 506, in connection with the sale of these
securities. The issuance of the warrants was made in compliance with all
the terms of Rules 501 and 502 of Regulation D, there were no more than 35
investors, as calculated pursuant to Rule 501(e) of Regulation D, and each
investor who was not an accredited investor represented to us that it had
such knowledge and experience in financial and business matters that it
was capable of evaluating the merits and risks of the investment.
(5) In April, June, July and August 1999, we issued and sold 4,197,450
shares of unregistered Series C preferred stock at a price per share of
$1.33 to fifteen investors for aggregate cash consideration of $5,596,600.
These shares were sold pursuant to a Series C preferred stock purchase
agreement between such investors and us. We relied upon Section 4(2) of
the Securities Act of 1933 and Regulation D, Rule 506, in connection with
the sale of these securities. The sale of Series C preferred stock was
made in compliance with all the terms of Rules 501 and 502 of Regulation
D, there were no more than 35 investors, as calculated pursuant to Rule
501(e) of Regulation D, and each investor who was not an accredited
investor represented to us that it had such knowledge and experience in
financial and business matters that it was capable of evaluating the
merits and risks of the investment.
(6) In April 1999, in connection with obtaining equipment leases and
loans, we issued unregistered warrants to purchase an aggregate of 262,500
shares of Series C preferred stock, with an exercise price per share of
$1.33, to Comdisco, Inc. We relied upon Section 4(2) of the Securities Act
of 1933 and Regulation D, Rule 506, in connection with the sale of these
securities. The issuance of the warrants was made in compliance with all
the terms of Rules 501 and 502 of Regulation D, there were no more than 35
investors, as calculated pursuant to Rule 501(e) of Regulation D, and each
investor who was not an accredited investor represented to us that it had
such knowledge and experience in financial and business matters that it
was capable of evaluating the merits and risks of the investment.
(7) In February 2000, we issued and sold 2,840,445 shares of
unregistered Series D preferred stock at a price per share of $5.33 to 43
investors for aggregate cash consideration of $15,149,040. These shares
were sold pursuant to a Series D preferred stock purchase agreement
between such investors and us. We relied upon Section 4(2) of the
Securities Act of 1933 and Regulation D, Rule 506, in connection with the
sale of these securities. The sale of Series D preferred stock was made in
compliance with all the terms of Rules 501 and 502 of Regulation D, there
were no more than 35 investors, as calculated pursuant to Rule 501(e) of
Regulation D, and each investor who was not an accredited investor
represented to us that it had such knowledge and experience in financial
and business matters that it was capable of evaluating the merits and
risks of the investment.
(8) In February 2000, pursuant to the terms of a software outsourcing
agreement, we issued unregistered warrants to purchase an aggregate of
23,076 shares of Series D preferred stock, with an exercise price per
share of $5.33, to eBay, Inc. We relied upon Section 4(2) of the
Securities Act of 1933 and Regulation D, Rule 506, in connection with the
sale of these securities. The issuance of the warrants was made in
compliance with all the terms of Rules 501 and 502 of Regulation D, there
were no more than 35 investors, as calculated pursuant to Rule 501(e) of
Regulation D, and each investor who was not
II-2
an accredited investor represented to us that it had such knowledge and
experience in financial and business matters that it was capable of
evaluating the merits and risks of the investment.
(9) In March 2000, we issued and sold to the shareholders, option
holders and warrant holders of Brightinfo.com, Inc. (1) 6,799,288 shares
of unregistered common stock valued at $5.33 per share, (2) unregistered
options to purchase 445,548 shares of unregistered common stock at
exercise prices ranging from $0.053 to $0.9532, and (3) unregistered
warrants to purchase 255,153 shares of unregistered common stock at
exercises prices ranging from $0.9532 to $2.11833, in exchange for all of
the outstanding stock, options and warrants of Brightinfo.com, Inc. These
securities were issued pursuant to an agreement and plan of
reorganization. We relied upon Section 4(2) of the Securities Act of 1933
and Regulation D, Rule 506, in connection with the sale of these
securities. The issuance these securities was made in compliance with all
the terms of Rules 501 and 502 of Regulation D, there were no more than 35
investors, as calculated pursuant to Rule 501(e) of Regulation D, and each
investor who was not an accredited investor represented to us that it had
such knowledge and experience in financial and business matters that it
was capable of evaluating the merits and risks of the investment.
(10) From September 9, 1997 to March 2, 2000, we granted options and
stock purchase rights to purchase 6,900,200 shares of unregistered common
stock to directors, officers, employees, former employees and consultants
under our 1997 stock option plan at exercise prices ranging from $0.04 to
$1.33 per share. Of the 6,900,200 shares granted, 2,967,749 remain
outstanding, 408,120 have been canceled and returned to the plan, and we
have issued and sold an aggregate of 3,542,882 shares of unregistered
common stock pursuant to exercises of stock options for aggregate cash
consideration of approximately $683,887, of which approximately $130,427
is subject to outstanding promissory notes payable to us. As to each of
our directors, officers, employees, former employees and consultants who
were issued such securities, we relied upon Rule 701 of the Securities Act
of 1933. Each such person purchased our securities pursuant to a written
contract between such person and us. In addition, we met the conditions
imposed under Rule 701(b).
The recipients of securities in each transaction represented their
intentions to acquire the securities for investment only and not with a view
to or for sale in connection with any distribution thereof. Appropriate
legends were affixed to the share certificates issued in the transactions
described above. All recipients had adequate access, through their
relationships with us or by information furnished by us to them, to
information about us.
(b) There were no underwritten offerings employed in connection with any
of the transactions set forth in Item 15(a).
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.
2.1* Agreement and Plan of Reorganization, dated as of March 2, 2000,
between the registrant, Annuncio Acquisition, Inc.,
Brightinfo.com, Inc., and Messrs. Bo Li, Cheryl Traverse, Chun
Xia, Sheng Zhu, and Yufeng Li.
2.2* Agreement and Plan of Merger between the registrant and Annuncio
Software, Inc., a Delaware corporation.
3.1* Certificate of Incorporation of registrant.
3.2* Form of Amended and Restated Certificate of Incorporation of
registrant to be filed upon the closing of the offering made under
the registration statement.
3.3* Bylaws of the registrant.
4.1* Form of registrant's common stock certificate.
4.2* Amended and Restated Investors Rights Agreement, dated March 2,
2000, between the registrant and the parties named therein.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1 Form of Indemnification Agreement entered into by registrant with
each of its directors and executive officers.
10.2 1997 Stock Option Plan (as Amended and Restated January 31, 2000)
and forms of agreements thereunder.
10.3* 1999 Brightinfo, Inc. Stock Option Plan and forms of agreements
thereunder.
10.4 2000 Stock Plan and forms of agreements thereunder.
10.5 2000 Employee Stock Purchase Plan and forms of agreements
thereunder.
10.6 2000 Director Option Plan and forms of agreements thereunder.
10.7.1 Lease between the registrant and The Dialog Corporation dated
March 4, 1999 for office space located at 2440 El Camino Real,
Suite 300, Mountain View, California.
10.7.2 Lease between the registrant and VANTAS dated July 16, 1999 for
office space located at 4900 Hopyard Road, Suite 100, Pleasanton,
California.
10.7.3 Lease between the registrant and Agresso Corp. Dated February 1,
2000 for office space at 2440 El Camino Real, Mountain View,
California.
10.7.4 Master Office Service Agreement, dated November 1, 1999, by and
between registrant and HQ Global Workplaces.
10.8.1+ OEM Software Order Form, dated May 19, 1998, by and between
registrant and Netscape Communications Corporation.
10.8.2+ Software License Agreement, dated December 23, 1998, by and
between registrant and Netscape Communications Corporation.
10.8.3+ Software Outsourcing Agreement, dated November 30, 1999, by and
between registrant and eBay Inc.
10.8.4+ License Agreement by and between registrant and SixGear, Inc. (fka
Bridge Telecom, Inc.), dated September 9, 1999.
10.8.5+ Software License and Services Agreement, dated October 6, 1999, by
and between registrant and Wells Fargo Bank, N.A.
10.8.6+ Software License Agreement, dated December 29, 1999, by and
between registrant and NBCi, Inc.
10.8.7+ License Agreement, dated December 30, 1999, by and between
registrant and E-Stamp Corporation.
10.8.8+ Software License Agreement, dated December 30, 1999, by and
between registrant and Phillips Interactive Health.
II-4
Exhibit
Number Description of Document
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10.8.9 Software License Agreement, dated May 19, 1999, by and between
registrant and Tidestone Technologies, Inc.
23.1* Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in exhibit 5.1).
23.2** Consent of Ernst & Young LLP, independent auditors.
24.1** Power of Attorney (see page II-6).
27.1** Financial Data Schedule.
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* To be filed by amendment.
+ Confidential treatment has been requested with respect to certain portions
of this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
** Previously filed.
(b)Financial Statement Schedules:
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under
the related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS
Insofar as indemnification by Annuncio for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Annuncio, we have 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 Annuncio of expenses incurred or paid by a director, officer or
controlling person of Annuncio 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, we will, unless in the
opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by Annuncio is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
We hereby undertake that:
(a) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by Annuncio pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(b) For the purpose 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 such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this amendment to the registration statement on Form
S-1 to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Mountain View, State of California, on the 21st day of March,
2000.
ANNUNCIO SOFTWARE, INC.
/s/ Didier Moretti
By: ____________________________
Didier Moretti
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to the registration statement has been signed by the following
persons in the capacities and on the dates indicated:
Signature Title Date
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/s/ Didier Moretti President and Chief March 21, 2000
______________________________________ Executive Officer and
Didier Moretti Director (Principal
Executive Officer)
/s/ Karil Reibold Vice President, Finance March 21, 2000
______________________________________ and Administration
Karil Reibold (Principal Financial and
Accounting Officer)
* Director March 21, 2000
______________________________________
Promod Haque
* Director March 21, 2000
______________________________________
Andre Touma
* Director March 21, 2000
______________________________________
Jos Henkens
* Director March 21, 2000
______________________________________
Mark Pine
* Director March 21, 2000
______________________________________
Cheryl Traverse
*By: /s/ Didier Moretti
__________________________________ March 21, 2000
Didier Moretti
Attorney-in-fact
II-6
EXHIBIT INDEX
Exhibit
Number Description of Document
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1.1* Form of Underwriting Agreement.
2.1* Agreement and Plan of Reorganization, dated as of March 2, 2000,
between the registrant, Annuncio Acquisition, Inc.,
Brightinfo.com, Inc., and Messrs. Bo Li, Cheryl Traverse, Chun
Xia, Sheng Zhu, and Yufeng Li.
2.2* Agreement and Plan of Merger between the registrant and Annuncio
Software, Inc., a Delaware corporation.
3.1* Certificate of Incorporation of registrant.
3.2* Form of Amended and Restated Certificate of Incorporation of
registrant to be filed upon the closing of the offering made under
the registration statement.
3.3* Bylaws of the registrant.
4.1* Form of registrant's common stock certificate.
4.2* Amended and Restated Investors Rights Agreement, dated March 2,
2000, between the registrant and the parties named therein.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1 Form of Indemnification Agreement entered into by registrant with
each of its directors and executive officers.
10.2 1997 Stock Option Plan (as Amended and Restated January 31, 2000)
and forms of agreements thereunder.
10.3* 1999 Brightinfo, Inc. Stock Option Plan and forms of agreements
thereunder.
10.4 2000 Stock Plan and forms of agreements thereunder.
10.5 2000 Employee Stock Purchase Plan and forms of agreements
thereunder.
10.6 2000 Director Option Plan and forms of agreements thereunder.
10.7.1 Lease between the registrant and The Dialog Corporation dated
March 4, 1999 for office space located at 2440 El Camino Real,
Suite 300, Mountain View, California.
10.7.2 Lease between the registrant and VANTAS dated July 16, 1999 for
office space located at 4900 Hopyard Road, Suite 100, Pleasanton,
California.
10.7.3 Lease between the registrant and Agresso Corp. Dated February 1,
2000 for office space at 2440 El Camino Real, Mountain View,
California.
10.7.4 Master Office Service Agreement, dated November 1, 1999, by and
between registrant and HQ Global Workplaces.
10.8.1+ OEM Software Order Form, dated May 19, 1998, by and between
registrant and Netscape Communications Corporation.
10.8.2+ Software License Agreement, dated December 23, 1998, by and
between registrant and Netscape Communications Corporation.
10.8.3+ Software Outsourcing Agreement, dated November 30, 1999, by and
between registrant and eBay Inc.
10.8.4+ License Agreement by and between registrant and SixGear, Inc. (fka
Bridge Telecom, Inc.), dated September 9, 1999.
10.8.5+ Software License and Services Agreement, dated October 6, 1999, by
and between registrant and Wells Fargo Bank, N.A.
10.8.6+ Software License Agreement, dated December 29, 1999, by and
between registrant and NBCi, Inc.
10.8.7+ License Agreement, dated December 30, 1999, by and between
registrant and E-Stamp Corporation.
10.8.8+ Software License Agreement, dated December 30, 1999, by and
between registrant and Phillips Interactive Health.
10.8.9 Software License Agreement, dated May 19, 1999, by and between
registrant and Tidestone Technologies, Inc.
23.1 * Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in exhibit 5.1).
Exhibit
Number Description of Document
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23.2** Consent of Ernst & Young LLP, independent auditors.
24.1** Power of Attorney (see page II-6).
27.1** Financial Data Schedule.
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+ Confidential treatment has been requested with respect to certain portions
of this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
* To be filed by amendment.
**Previously filed.