As filed with the Securities and Exchange Commission on August 11, 1999.
Registration No. 333-84033
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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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INTERTRUST TECHNOLOGIES CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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Delaware 7371 52-1672106
(State or Other (Primary Standard Industrial (I.R.S. Employer
Jurisdiction of Classification Code Number) Identification Number)
Incorporation or
Organization)
460 Oakmead Parkway, Sunnyvale, CA 94086
(408) 222-6100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Victor Shear
Chief Executive Officer and Chairman of the Board
InterTrust Technologies Corporation
460 Oakmead Parkway, Sunnyvale, CA 94086
(408) 222-6100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Robert V. Gunderson, Jr., Esq. Laird H. Simons III, Esq.
Bennett L. Yee, Esq. Katherine Tallman Schuda, Esq.
William E. Growney, Jr., Esq. Tyler R. Cozzens, Esq.
Amy S. Cohen, Esq. Pamela A. Sergeeff, Esq.
Margaret E. Paige, Esq. Fenwick & West LLP
Gunderson Dettmer Stough Two Palo Alto Square
Villeneuve Franklin & Hachigian, LLP Palo Alto, California 94306
155 Constitution Drive (650) 494-0600
Menlo Park, California 94025
(650) 321-2400
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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, as amended, 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 that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to such 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 presents the costs and expenses, other than underwriting
discounts and commissions, payable by us in connection with the sale of common
stock being registered. All amounts are estimates except the SEC registration
fee, the NASD filing fees, and The Nasdaq National Market listing fee.
SEC Registration fee............................................. $ 23,630
NASD filing fee.................................................. 9,000
Nasdaq National Market listing fee............................... 90,000
Printing and engraving expenses.................................. 150,000
Legal fees and expenses.......................................... 400,000
Accounting fees and expenses..................................... 175,000
Road show expenses............................................... 50,000
Blue sky fees and expenses....................................... 5,000
Custodian and transfer agent fees................................ 15,000
Miscellaneous fees and expenses.................................. 82,370
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Total.......................................................... $1,000,000
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Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit indemnification
under limited circumstances for liabilities, including reimbursement for
expenses incurred, arising under the Securities Act of 1933, as amended (the
"Securities Act"). Article VI, Section 6.1 of our bylaws provides for mandatory
indemnification of our directors, officers and employees to the maximum extent
permitted by the Delaware General Corporation Law. Our Sixth Amended and
Restated Certificate of Incorporation provides that our officers and directors
shall not be liable for monetary damages for breach of the officers' or
directors' fiduciary duty as officers or directors to our stockholders and us.
This provision in the Sixth Amended and Restated Certificate of Incorporation
does not eliminate the officers' or directors' fiduciary duty, and, in
appropriate circumstances, equitable remedies like injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each
officer or director will continue to be subject to liability for breach of the
officer's or director's duty of loyalty to us or our stockholders for acts or
omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
officer or director, and for payment of dividends or approval of stock
repurchases or redemptions that are unlawful under Delaware law. The provision
also does not affect an officer's or director's responsibilities under any
other law, like the federal securities laws or state or federal environmental
laws. We have entered into indemnification agreements with our officers and
directors, a form of which is attached as Exhibit 10.1 and incorporated by
reference. The indemnification agreements provide our officers and directors
with
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further indemnification to the maximum extent permitted by the Delaware General
Corporation Law. Reference is made to Section 7 of the underwriting agreement
contained in Exhibit 1.1 to this registration statement, indemnifying officers
and directors of ours against limited liabilities.
Item 15. Recent Sales of Unregistered Securities
Since January 1, 1996, we have issued and sold the following securities:
1. We granted direct issuances or stock options to purchase 7,840,400 shares
of our common stock at exercise prices ranging from $0.625 to $12.00 per share
to employees, consultants, directors and other service providers under our 1995
Stock Plan. We granted direct issuances or stock options to purchase 1,234,360
shares of our common stock at exercise prices ranging from $0.01 to $7.65 per
share to service providers outside of the 1995 Plan.
2. We issued and sold an aggregate of 1,955,995 shares of our common stock
to employees, consultants, and other service providers for aggregate
consideration of approximately $2,573,811 under direct issuances or exercises
of options granted under our 1995 Stock Plan. We issued and sold an aggregate
of 1,676,200 shares of our common stock to employees, consultants, and other
service providers for aggregate consideration of approximately $1,137,851 under
direct issuances or exercises of options granted under our 1992 Stock Plan. We
issued and sold an aggregate of 320,360 shares of our common stock to
employees, consultants, and other service providers for aggregate consideration
of approximately $449,701 under direct issuances or exercises of options
granted outside of the Plans.
3. On February 29, 1996, we issued a warrant to purchase 16,000 shares of
our class A voting common stock with an exercise price of $1.25 per share to
Alexander Communications in connection with the payment of a convertible
promissory note. The warrant was subsequently exercised and we issued 16,000
shares thereunder.
4. On April 24, 1996, we issued a warrant to purchase 8,000 shares of our
class A voting common stock with an exercise price of $1.25 per share to John
Holmgreen in connection with the payment of a convertible promissory note. The
warrant was subsequently exercised and we issued 8,000 shares thereunder.
5. On April 24, 1996, we issued two warrants to purchase a total of 200,000
shares of our class A voting common stock with an exercise price of $1.25 per
share to Otto Candies, LLC in connection with the payment of two convertible
promissory notes. The warrants were subsequently exercised and we issued
200,000 shares thereunder.
6. On April 27, 1996, we issued a warrant to purchase 32,000 shares of our
class A voting common stock with an exercise price of $1.25 per share to the
Hubbs Family Trust in connection with the payment of a convertible promissory
note. The warrant was subsequently exercised and we issued 32,000 shares
thereunder.
7. In March, April and June 1996, we issued and sold 3,966,666 shares of our
Series A preferred stock for an aggregate purchase price of approximately
$10,135,000 to a group of investors under a stock purchase agreement.
II-2
8. In August and October 1996, June and December 1997, and March, April,
July, August, September, November and December 1998, we issued and sold
6,533,721 shares of our Series B preferred stock for an aggregate purchase
price of approximately $27,997,000 to a group of investors under a stock
purchase agreement.
9. On August 19, 1996, we issued a warrant to purchase 311,016 shares of our
class B non-voting common stock to Upgrade Corporation of America.
10. On November 1, 1996, we issued a warrant to purchase 10,000 shares of
our class A voting common stock with an exercise price of $2.56 per share to
the Rutherford Bolen Group.
11. On April 28, 1998, we issued a warrant to purchase 2,000 shares of our
class B non-voting common stock with an exercise price of $1.50 per share to
Peter Williams.
12. On June 4, 1998, we issued a warrant to purchase 3,000 shares of our
class B non-voting common stock with an exercise price of $1.50 per share to
Peter Williams.
13. On December 21, 1998, we issued a warrant to purchase 4,000 shares of
our class B non-voting common stock with an exercise price of $1.75 per share
to Bill Horne.
14. In March 1999, we issued and sold 850,000 shares of our Series C
preferred stock for an aggregate purchase price of approximately $5,007,000 to
a group of investors under a stock purchase agreement.
15. In April and May 1999, we issued and sold 1,142,023 shares of our Series
D preferred stock for an aggregate purchase price of approximately $9,707,000
to a group of investors under a stock purchase agreement.
16. In July 1999, we issued and sold 1,393,033 shares of our Series E
preferred stock for an aggregate purchase price of approximately $16,716,000 to
a group of investors under a stock purchase agreement.
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 under compensation benefit plans and contracts
relating to compensation as provided under Rule 701. 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 and appropriate legends were affixed to the share
certificates issued in these transactions. All recipients had adequate access,
through their relationships with us, to information about us.
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Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit
No. Description
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1.1* Form of Underwriting Agreement.
3.1** Fifth Amended and Restated Certificate of Incorporation of the
Registrant.
3.2** Form of Sixth Amended and Restated Certificate of Incorporation to be
filed upon the closing of the offering made under this Registration
Statement.
3.3** Bylaws of the Registrant.
3.4** Amended and Restated Bylaws of the Registrant to be effective upon the
closing of the offering made under this Registration Statement.
4.1 Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4.
4.2* Form of Registrant's Common Stock certificate.
4.3** Form of Registration Rights under select Convertible Promissory Notes.
4.4** Form of Registration Rights under select Class A Common Stock Purchase
Agreements.
4.5** Form of Series A Preferred Stock Registration Rights.
4.6** Form of Series B, C, D and E Preferred Stock Registration Rights.
4.7** Form of Registration Rights found in a Class B Non-Voting Common Stock
Warrant.
5.1* Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian,
LLP.
10.1** Form of Indemnification Agreement entered into by the Registrant with
each of its directors and executive officers.
10.2** 1999 Equity Incentive Plan and forms of agreements thereunder.
10.3** 1999 Employee Stock Purchase Plan.
10.4** 1999 Non-Employee Directors Option Plan.
10.5* Warrant for the purchase of Class B Non-Voting Common Stock made by
the Registrant and held by Upgrade Corporation of America, dated
August 19, 1996.
10.6** Lease between California First, Ltd. and the Registrant dated April
28, 1994.
10.7** Amendment No. 1 to Lease between California First, Ltd. and the
Registrant dated August 10, 1994.
10.8** Amendment No. 2 to Lease between California First, Ltd. and the
Registrant dated April 17, 1997.
10.9** Standard Industrial/Commercial Multi-Tenant Lease-Modified Net and
Addendum between Staffield Investments and the Registrant dated March
21, 1997.
10.10** Addendum No. 2 to Standard Industrial/Commercial Multi-Tenant Lease-
Modified Net between Staffield Investments and the Registrant dated
September 10, 1998.
10.11** Lease between Mission West Properties, L.P. and the Registrant dated
July 21, 1999.
10.12+ Technology Development, Marketing, and License Agreement by and
between the Registrant and National Westminster Bank PLC dated August
18, 1998.
10.13+ Technology Development and License Agreement by and between the
Registrant and Universal Music Group, Inc. dated April 13, 1999.
10.14+ Technology Development and License Agreement by and between the
Registrant and Upgrade Corporation of America dated August 7, 1996.
10.15+ Technology Development and License Agreement by and between the
Registrant and Mitsubishi Corporation dated October 7, 1996.
23.1** Consent of Ernst & Young LLP, independent auditors.
23.2* Consent of Counsel. Reference is made to Exhibit 5.1.
24.1** Power of Attorney (see p. II-6).
27.1** Financial Data Schedule.
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* To be filed by amendment.
** Previously filed.
+ 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 Schedules
All schedules have been omitted because the information required to be
presented in them is not applicable or is shown in the consolidated financial
statements or related notes.
Item 17. Undertakings
We undertake to provide to the underwriters at the closing specified in the
underwriting agreement, certificates in the denominations and registered in the
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 under the Delaware General Corporation Law, our Sixth Amended and
Restated Certificate of Incorporation or our Amended and Restated Bylaws, the
underwriting agreement, or otherwise, we have 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 us of expenses incurred or paid by a
director, officer, or controlling person of ours 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 in this
offering, 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 of whether this indemnification by us is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of this issue.
We undertake 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 us under 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,
and the offering of these securities at that time shall be deemed to be the
initial bona fide offering.
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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 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Sunnyvale, State of California, on this 11th day of August, 1999.
Intertrust Technologies Corporation
By /s/ Victor Shear
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Victor Shear
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated:
Signature Title Date
/s/ Victor Shear Chairman of the Board and
- ------------------------------- Chief Executive Officer August 11, 1999
Victor Shear (Principal Executive
Officer)
Vice Chairman of the
/s/ Erwin N. Lenowitz* Board, Chief Financial August 11, 1999
- ------------------------------- Officer (Principal
Erwin N. Lenowitz Financial and Accounting
Officer) and Secretary
/s/ Edmund J. Fish Director, Senior Operating
- ------------------------------- Officer and Executive August 11, 1999
Edmund J. Fish Vice President, Corporate
Development
Senior Vice President of
/s/ David Van Wie* Research and Director August 11, 1999
- -------------------------------
David Van Wie
Director
/s/ Bruce Frederickson* August 11, 1999
- -------------------------------
Bruce Fredrickson
Director
/s/ Satish K. Gupta* August 11, 1999
- -------------------------------
Satish K. Gupta
Director
/s/ Larry D. McArthur* August 11, 1999
- -------------------------------
Larry D. McArthur
Victor Shear
*By: /s/
---------------------------
Victor Shear
>Attorney-in-fact
Edmund J. Fish
*By: /s/
---------------------------
Edmund J. Fish
Attorney-in-fact
II-6
INDEX TO EXHIBITS
Exhibit
No. Description
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1.1* Form of Underwriting Agreement.
3.1** Fifth Amended and Restated Certificate of Incorporation of the
Registrant.
3.2** Form of Sixth Amended and Restated Certificate of Incorporation to be
filed upon the closing of the offering made under this Registration
Statement.
3.3** Bylaws of the Registrant.
3.4** Amended and Restated Bylaws of the Registrant to be effective upon the
closing of the offering made under this Registration Statement.
4.1 Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4.
4.2* Form of Registrant's Common Stock certificate.
4.3** Form of Registration Rights under select Convertible Promissory Notes.
4.4** Form of Registration Rights under select Class A Common Stock Purchase
Agreements.
4.5** Form of Series A Preferred Stock Registration Rights.
4.6** Form of Series B, C, D and E Preferred Stock Registration Rights.
4.7** Form of Registration Rights found in a Class B Non-Voting Common Stock
Warrant.
5.1* Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian,
LLP.
10.1** Form of Indemnification Agreement entered into by the Registrant with
each of its directors and executive officers.
10.2** 1999 Equity Incentive Plan and forms of agreements thereunder.
10.3** 1999 Employee Stock Purchase Plan.
10.4** 1999 Non-Employee Directors Option Plan.
10.5* Warrant for the purchase of Class B Non-Voting Common Stock made by
the Registrant and held by Upgrade Corporation of America, dated
August 19, 1996.
10.6** Lease between California First, Ltd. and the Registrant dated April
28, 1994.
10.7** Amendment No. 1 to Lease between California First, Ltd. and the
Registrant dated August 10, 1994.
10.8** Amendment No. 2 to Lease between California First, Ltd. and the
Registrant dated April 17, 1997.
10.9** Standard Industrial/Commercial Multi-Tenant Lease-Modified Net and
Addendum between Staffield Investments and the Registrant dated March
21, 1997.
10.10** Addendum No. 2 to Standard Industrial/Commercial Multi-Tenant Lease-
Modified Net between Staffield Investments and the Registrant dated
September 10, 1998.
10.11** Lease between Mission West Properties, L.P. and the Registrant dated
July 21, 1999.
10.12+ Technology Development, Marketing, and License Agreement by and
between the Registrant and National Westminster Bank PLC dated August
18, 1998.
10.13+ Technology Development and License Agreement by and between the
Registrant and Universal Music Group, Inc. dated April 13, 1999.
10.14+ Technology Development and License Agreement by and between the
Registrant and Upgrade Corporation of America dated August 7, 1996.
10.15+ Technology Development and License Agreement by and between the
Registrant and Mitsubishi Corporation dated October 7, 1996.
23.1** Consent of Ernst & Young LLP, independent auditors.
23.2* Consent of Counsel. Reference is made to Exhibit 5.1.
24.1** Power of Attorney (see p. II-6).
27.1** Financial Data Schedule.
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* To be filed by amendment.
** Previously filed.
+ 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.