AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1998
REGISTRATION STATEMENT NO. 333-52663
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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POINTCAST INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7372 77-0315081
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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501 MACARA AVENUE
SUNNYVALE, CA 94086
(408) 990-7000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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DAVID W. DORMAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CHAIRMAN OF THE BOARD
POINTCAST INCORPORATED
501 MACARA AVENUE
SUNNYVALE, CA 94086
(408) 990-7000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
LARRY W. SONSINI, ESQ. SCOTT C. DETTMER, ESQ.
JUDITH M. O'BRIEN, ESQ. BENNETT L. YEE, ESQ.
DONNA M. PETKANICS, ESQ. JONATHAN J. NOBLE, ESQ.
BRUCE M. MCNAMARA, ESQ. GUNDERSON DETTMER STOUGH
WILSON SONSINI GOODRICH & ROSATI VILLENEUVE FRANKLIN & HACHIGIAN, LLP
PROFESSIONAL CORPORATION 155 CONSTITUTION DRIVE
650 PAGE MILL ROAD MENLO PARK, CA 94025
PALO ALTO, CA 94304 (650) 321-2400
(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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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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EXPLANATORY NOTE
This Amendment No. 1 to the Form S-1 Registration Statement is being filed
for the sole purpose of filing additional exhibits.
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
underwriting discounts and commissions, payable by the Registrant in
connection with the sale of 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
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SEC registration fee........................................... $15,267
NASD filing fee................................................ 5,675
Nasdaq National Market listing fee............................. *
Printing and shipping fees..................................... *
Legal fees and expenses........................................ *
Accounting fees and expenses................................... *
Directors and officers liability insurance..................... *
Blue Sky qualification fees and expenses....................... *
Transfer agent and registrar fees.............................. *
Miscellaneous fees............................................. *
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Total........................................................ $ *
=======
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* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to the following documents filed as exhibits to this
Registration Statement regarding relevant indemnification provisions described
above and elsewhere herein:
EXHIBIT
DOCUMENT NUMBER
-------- -------
Form of Underwriting Agreement................................... 1.1
Amended and Restated Certificate of Incorporation................ 3.2
Bylaws of Registrant............................................. 3.3
Amended and Restated Investors' Rights Agreement................. 4.1
Form of Indemnification Agreement entered into by the Registrant
with each of its directors and executive officers............... 10.1
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since March 31, 1995, the Registrant has issued and sold the following
securities:
1. Since March 31, 1995, the Registrant issued and sold 1,386,155 shares
of Common Stock to directors, employees and consultants at prices ranging
from $0.06 to $7.50 per share, upon exercise of stock options pursuant to
the Registrant's 1994 Stock Plan and pursuant to Common Stock Purchase
Agreements.
2. On December 7, 1995, the Registrant issued and sold an aggregate of
2,449,634 shares of Series B Preferred Stock to a total of seven investors
at $2.11 per share, for an aggregate purchase price of $5,169,578.08.
3. On February 9, 1996, the Registrant issued and sold an aggregate of
971,038 shares of Series C Preferred Stock to a total of five investors at
$3.00 per share, for an aggregate purchase price of $2,913,108.00.
4. From July 19, 1996 to July 31, 1996, the Registrant issued and sold an
aggregate of 2,540,356 shares of Series D Preferred Stock to a total of 14
investors at $14.25 per share, for an aggregate purchase price of
$36,200,006.50.
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5. From September 12, 1997 to January 13, 1998, the Registrant issued and
sold an aggregate of 1,533,607 shares of Series E Preferred Stock to a
total of nine investors at $14.25 per share, for an aggregate purchase
price of $21,853,838.00.
6. On July 31, 1995, the Registrant granted warrants to purchase an
aggregate of 26,280 shares of Series B Preferred Stock to one investor at
$2.1104 per share.
7. On December 10, 1996, the Registrant granted a warrant to purchase an
aggregate of 701,756 shares of Series D Preferred Stock to two investors at
$14.25 per share.
8. On December 11, 1997, the Registrant granted warrants to purchase an
aggregate of 208,334 shares of Common Stock to two investors at $7.50 per
share.
The sale of the above securities was deemed to be exempt from registration
under the Securities Act in reliance upon Section 4(2) of the Securities Act
or Regulation D promulgated thereunder, or Rule 701 promulgated under Section
3(b) of the Securities Act as transactions by an issuer not involving any
public offering or transactions pursuant to compensation benefit plans and
contracts relating to compensation as provided under such Rule 701. The
recipients of securities in each such 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, and appropriate legends were
affixed to the share certificates issued in such transactions. All recipients
had adequate access, through their relationships with the Registrant, to
information about the Registrant.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT NO. DESCRIPTION
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1.1* Form of Underwriting Agreement.
3.1 Certificate of Incorporation of Registrant.
3.2* Amended and Restated Certificate of Incorporation.
3.3* Bylaws of Registrant.
4.1 Amended and Restated Investors' Rights Agreement dated September
12, 1997.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati regarding legality of
the securities being issued.
10.1** Form of Indemnification Agreement entered into by Registrant with
each of its directors and executive officers.
10.2 Stock Option Agreement with Philip J. Koen dated as of May 28,
1997.
10.3** 1994 Stock Plan and related agreements, as amended.
10.4** 1998 Employee Stock Purchase Plan and related agreements.
10.5*** 1998 Director Option Plan and related agreements.
10.6 PointCast Japan, L.L.C. Limited Liability Company Agreement by and
between the Registrant and TransCosmos, Incorporated dated as of
May 30, 1997.
10.7 Assignment of Commercial Exploitation Rights Agreement by and
among the Registrant, TransCosmos, Incorporated and PointCast
Japan, L.L.C. effective as of May 30, 1997.
10.8 Assignment of Commercial Exploitation Rights by and between
PointCast Japan, L.L.C. and PointCast K.K. effective as of July
25, 1997.
10.9 Commercial Exploitation Rights Agreement by and between
TransCosmos, Incorporated and the Registrant effective as of May
30, 1997.
10.10+ Administrative Services and Management Agreement by and between
PointCast K.K. and TransCosmos, Incorporated dated as of July 25,
1997.
10.11+ Sub-License of Technology and Trademark Rights by and between
PointCast Japan, L.L.C. and PointCast K.K. effective as of July
25, 1997.
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EXHIBIT NO. DESCRIPTION
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10.12+ Maintenance and Support Agreement by and between the Registrant
and PointCast K.K. dated as of July 25, 1997.
10.13 Technology and Trademark License Agreement by and between the
Registrant and PointCast Japan, L.L.C. effective as of May 30,
1997.
10.14** Employment Agreement by and between the Registrant and David
Dorman dated as of November 1, 1997 and related agreements.
10.15** Lease Agreement by and between John Arrillaga, Trustee, UTA dated
7/20/77 as amended, and Richard T. Peery, Trustee, UTA dated
7/20/77 as amended, and the Registrant dated as of January 22,
1997.
10.16** Sublease by and between the Registrant and Internet Shopping
Network, Inc. dated as of August 29, 1997.
10.17** Lease Agreement by and between John Arrillaga, Trustee, UTA dated
7/20/77 as amended, and Richard T. Peery, Trustee, UTA dated
7/30/77 as amended, and the Registrant dated as of May 21, 1996,
and the amendment thereto.
10.18+ Services Agreement by and between Electronic Data Systems
Corporation and the Registrant dated as of December 19, 1996.
10.19** Part-Time Employment and Non-Competition Agreement by and between
the Registrant and Christopher R. Hassett.
10.20** Part-Time Employment and Non-Competition Agreement by and between
the Registrant and Gregory P. Hassett.
10.21 Preferred Stock Purchase Warrant granted to Lighthouse Capital
Partners, L.P. dated as of August 10, 1995.
10.22 Common Stock Purchase Warrant granted to Benchmark Capital
Partners, L.P. dated as of December 11, 1997.
10.23 Common Stock Purchase Warrant granted to Benchmark Founders' Fund,
L.P. dated as of December 11, 1997.
10.24 Series D Preferred Stock Purchase Warrant granted to Cable News
Network, Inc. dated as of December 10, 1996.
10.25 Series D Preferred Stock Purchase Warrant granted to Time Inc. New
Media dated as of December 10, 1996.
10.26 Loan and Security Agreement by and between MetLife Capital
Corporation and the Registrant dated as of November 18, 1997.
10.27 Revolving Credit Loan & Security Agreement by and between Comerica
Bank-California and the Registrant dated as of August 4, 1997.
16.1** Letter of Arthur Andersen LLP, Independent Auditors.
21.1** Subsidiaries.
23.1* Consent of Wilson Sonsini Goodrich & Rosati (included in Exhibit
5.1).
23.2** Consent of Price Waterhouse LLP, Independent Accountants.
24.1** Power of Attorney.
27.1** Financial Data Schedule.
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* To be filed by amendment.
** Previously filed.
*** Corrected version of previously filed document.
+ Confidential treatment has been requested for certain portions which have
been blacked out in the copy of the exhibit filed with the Securities and
Exchange Commission. The omitted information has been filed separately
with the Securities and Exchange Commission pursuant to the application
for confidential treatment.
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(b) Financial Statement Schedule
Schedule II--Valuation and Qualifying Accounts........................ S-1
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the
consolidated financial statements or notes thereto.
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.
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 Delaware General Corporation Law, the Registrant's
Restated Certificate of Incorporation, the Registrant's Bylaws, the
Registrant's indemnification agreements 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 hereunder, 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 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
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 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, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to the Registration Statement on Form S-1
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Sunnyvale, State of California, on this 20th day of May 1998.
PointCast Incorporated
*
By: _________________________________
DAVID W. DORMAN,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 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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* Chairman of the May 20, 1998
- ------------------------------------- Board, President
(DAVID W. DORMAN) and Chief Executive
Officer (Principal
Executive Officer)
/s/ Philip J. Koen Senior Vice
- ------------------------------------- President, Finance May 20, 1998
(PHILIP J. KOEN) and Chief Financial
Officer (Principal
Financial and
Accounting Officer)
* Director May 20, 1998
- -------------------------------------
(SANFORD R. CLIMAN)
* Director May 20, 1998
- -------------------------------------
(JONATHAN FEIBER)
* Director May 20, 1998
- -------------------------------------
(CHARLES GESCHKE)
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SIGNATURE TITLE DATE
--------- ----- ----
* Director May 20, 1998
- -------------------------------
(KEVIN R. HARVEY)
* Director May 20, 1998
- -------------------------------
(GREGORY P. HASSETT)
* Director May 20, 1998
- -------------------------------
(STEVEN HEYER)
* Director May 20, 1998
- -------------------------------
(ANDREW S. RACHLEFF)
/s/ Philip J. Koen
*By: __________________________
PHILIP J. KOEN
Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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1.1* Form of Underwriting Agreement.
3.1 Certificate of Incorporation of Registrant.
3.2* Amended and Restated Certificate of Incorporation.
3.3* Bylaws of Registrant.
4.1 Amended and Restated Investors' Rights Agreement dated September
12, 1997.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati regarding legality of
the securities being issued.
10.1** Form of Indemnification Agreement entered into by Registrant with
each of its directors and executive officers.
10.2 Stock Option Agreement with Philip J. Koen dated as of May 28,
1997.
10.3** 1994 Stock Plan and related agreements, as amended.
10.4** 1998 Employee Stock Purchase Plan and related agreements.
10.5*** 1998 Director Option Plan and related agreements.
10.6 PointCast Japan, L.L.C. Limited Liability Company Agreement by and
between the Registrant and TransCosmos, Incorporated dated as of
May 30, 1997.
10.7 Assignment of Commercial Exploitation Rights Agreement by and
among the Registrant, TransCosmos, Incorporated and PointCast
Japan, L.L.C. effective as of May 30, 1997.
10.8 Assignment of Commercial Exploitation Rights by and between
PointCast Japan, L.L.C. and PointCast K.K. effective as of July
25, 1997.
10.9 Commercial Exploitation Rights Agreement by and between
TransCosmos, Incorporated and the Registrant effective as of May
30, 1997.
10.10+ Administrative Services and Management Agreement by and between
PointCast K.K. and TransCosmos, Incorporated dated as of July 25,
1997.
10.11+ Sub-License of Technology and Trademark Rights by and between
PointCast Japan, L.L.C. and PointCast K.K. effective as of July
25, 1997.
10.12+ Maintenance and Support Agreement by and between the Registrant
and PointCast K.K. dated as of July 25, 1997.
10.13 Technology and Trademark License Agreement by and between the
Registrant and PointCast Japan, L.L.C. effective as of May 30,
1997.
10.14** Employment Agreement by and between the Registrant and David
Dorman dated as of November 1, 1997 and related agreements.
10.15** Lease Agreement by and between John Arrillaga, Trustee, UTA dated
7/20/77 as amended, and Richard T. Peery, Trustee, UTA dated
7/20/77 as amended, and the Registrant dated as of January 22,
1997.
10.16** Sublease by and between the Registrant and Internet Shopping
Network, Inc. dated as of August 29, 1997.
10.17** Lease Agreement by and between John Arrillaga, Trustee, UTA dated
7/20/77 as amended, and Richard T. Peery, Trustee, UTA dated
7/30/77 as amended, and the Registrant dated as of May 21, 1996,
and the amendment thereto.
10.18+ Services Agreement by and between Electronic Data Systems
Corporation and the Registrant dated as of December 19, 1996.
10.19** Part-Time Employment and Non-Competition Agreement by and between
the Registrant and Christopher R. Hassett.
EXHIBIT NO. DESCRIPTION
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10.20** Part-Time Employment and Non-Competition Agreement by and between
the Registrant and Gregory P. Hassett.
10.21 Preferred Stock Purchase Warrant granted to Lighthouse Capital
Partners, L.P. dated as of August 10, 1995.
10.22 Common Stock Purchase Warrant granted to Benchmark Capital
Partners, L.P. dated as of December 11, 1997.
10.23 Common Stock Purchase Warrant granted to Benchmark Founders' Fund,
L.P. dated as of December 11, 1997.
10.24 Series D Preferred Stock Purchase Warrant granted to Cable News
Network, Inc. dated as of December 10, 1996.
10.25 Series D Preferred Stock Purchase Warrant granted to Time Inc. New
Media dated as of December 10, 1996.
10.26 Loan and Security Agreement by and between MetLife Capital
Corporation and the Registrant dated as of November 18, 1997.
10.27 Revolving Credit Loan & Security Agreement by and between Comerica
Bank-California and the Registrant dated as of August 4, 1997.
16.1** Letter of Arthur Andersen LLP, Independent Auditors.
21.1** Subsidiaries.
23.1* Consent of Wilson Sonsini Goodrich & Rosati (included in Exhibit
5.1).
23.2** Consent of Price Waterhouse LLP, Independent Accountants.
24.1** Power of Attorney.
27.1** Financial Data Schedule.
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* To be filed by amendment.
** Previously filed.
*** Corrected version of previously filed document.
+ Confidential treatment has been requested for certain portions which have
been blacked out in the copy of the exhibit filed with the Securities and
Exchange Commission. The omitted information has been filed separately
with the Securities and Exchange Commission pursuant to the application
for confidential treatment.