<PAGE>
As filed with the Securities and Exchange Commission on June 25, 1998
Registration No. 333-32987
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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INFLUENCE, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 5047 13-3798523
(State or other jurisdiction (Primary SIC Code) (I.R.S. Employer
of incorporation or Identification No.)
organization)
71 Stevenson Street, Suite 1120
San Francisco, California 94105
(415) 546-7700
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
PETER A. BICK, M.D.
President and Chief Executive Officer
Influence, Inc.
71 Stevenson Street, Suite 1120
San Francisco, California 94105
(415) 546-7700
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
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Copies to:
PAUL I. RACHLIN, ESQ. JONATHAN M. MOULTON, ESQ.
Arnold & Porter Testa, Hurwitz & Thibeault, LLP
399 Park Avenue High Street Tower
New York, New York 10022 125 High Street
(212) 715-1000 Boston, Massachusetts 02110
(617) 248-7000
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 (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 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 which 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 this
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses expected to be incurred in connection with the issuance
and distribution of the securities being registered under the Registration
Statement, other than underwriting discounts and commissions, are estimated in
the following table. All of the amounts shown are estimates, except for the
SEC registration fee and the NASD filing fee, and all of such expenses will be
borne by Influence, Inc. ("Influence"):
Securities and Exchange Commission registration fee.............. $11,326
NASD filing fee.................................................. 4,238
Nasdaq Stock Market Listing Application fee...................... 17,500
Printing and engraving expenses.................................. 100,000
Legal fees and expenses.......................................... 200,000
Accounting fees and expenses..................................... 125,000
Blue sky fees and expenses (including counsel fees).............. 15,000
Transfer agent and registrar fees................................ 2,000
Miscellaneous expenses........................................... 124,936
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Total.......................................... $600,000
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Influence, Inc., a Delaware corporation (the "Company"), is empowered
by Section 145 of the Delaware General Corporation Law (the "Delaware Act"),
subject to the procedures and limitations stated therein, to indemnify certain
parties. The Company's By-laws provide that the directors and officers shall
be indemnified and held harmless to the fullest extent of applicable law.
Section 145 of the Delaware Act provides in part that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including
attorneys' fees) actually and reasonably incurred in defense or settlement of
any threatened, pending or completed action or suit by or in the right of the
corporation, if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and
provided further that (unless a court of competent jurisdiction otherwise
provides) such person shall not have been adjudged liable to the corporation.
Any such indemnification may be made only as authorized in each specific case
upon a determination by the stockholders or disinterested directors that
indemnification is proper because the indemnitee has met the applicable
standard of conduct. Where an officer or a director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually or reasonably incurred. Section 145 provides further that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
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Article Tenth of the Company's Second Restated Certificate of
Incorporation, as amended (the "Certificate") provides that the Company shall
indemnify any and all persons whom it has the power to indemnify under Section
145 of the Delaware Act to the fullest extent permitted under such section,
and such indemnity shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Article Ninth of the Company's Certificate eliminates the personal
liability of the Company's directors to the fullest extent permitted under
Section 102(b)(7) of the Delaware Act, as amended. Such section permits a
company's certificate of incorporation to eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director: (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) under Section 174
of the Delaware Act (which addresses director liability for unlawful payment
of a dividend or unlawful stock purchase or redemption) or (iv) for any
transaction from which the director derived an improper personal benefit.
The Company intends to apply for a directors' and officers' insurance
policy.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Described below are sales of unregistered securities by the
registrant within the past three years:
(1) On December 14, 1994, the Company issued 5,020,144 shares of
Common Stock in consideration of the par value of such shares
to the founders of the Company.
(2) From March 1995 through November 1995, 713,000 shares of
Series A Preferred Stock were sold to 48 accredited investors
at a price of $5.00 per share.
(3) Pursuant to the Company's stock option plans, the Company
has granted to employees and to a limited number of outside
consultants options to purchase an aggregate of 1,224,377
shares of Common Stock. In 1995, the Company granted options
to purchase an aggregate of 72,986 shares of Common Stock,
to employees outside the United States and options to
purchase 112,667 shares of Common Stock, of which 44,572
were to non-employees outside the United States and 68,095
were granted to three non-employees in the U.S. Such
non-employees included two physicians who assisted in the
design of one of the Company's products under development
and a bookkeeper.
In 1996, the Company granted options to purchase an
aggregate of 292,191 shares of Common Stock to employees, of
which three resided in the United States, and options to
purchase 38,381 shares of Common Stock to non-employees
outside the United States who assisted the Company through
their services. In 1998, the Company granted to employees
options to purchase an aggregate of 655,803 shares of Common
Stock, of which 201,452 were to 32 employees in the United
States. In addition, in 1998 the Company granted options to
purchase an aggregate of 192,847 shares of Common Stock to
non-employees, of which an aggregate of 133,179 were to nine
persons in the United States. Four of such persons were
physicians involved in either in clinical trials of the
Company's products or who served on the Company's Scientific
Advisory Committee. Three of the nine are consultants
working on the development of the Company's cancer therapy
product under development. Two additional persons were
outside regulatory consultants.
(4) Medtronic, Inc. ("Medtronic") became a stockholder of the
Company in connection with an agreement, dated December 10,
1996 (the "Medtronic Agreement") between Medtronic, the
Company, and substantially all of the stockholders of the
Company. Under the terms of the Medtronic Agreement,
Medtronic received in December 1996 an option to acquire all
the shares of Common and Preferred stock in the Company for
approximately $180 million, or for
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approximately $28 per share on a fully diluted basis. In
consideration of this option, Medtronic invested $20 million
in the Company in exchange for a convertible debenture of the
Company (the "Debenture"). Medtronic's option to acquire the
Company expired unexercised on June 10, 1997. Pursuant to the
terms of the Debenture, all outstanding principal and accrued
interest on June 10, 1997, which amounted to $20,837,808,
automatically converted into common stock at a conversion
price of $62.55 per share, which resulted in the issuance to
Medtronic of 333,164 shares, or approximately 5.43% of the
outstanding Common Stock of the Company prior to the
completion of the Offering.
(5) On May 1, 1998, the Company issued a convertible promissory
note (the "Note") in the principal amount of $1,000,000 to
Johnson & Johnson Development Corporation ("JJDC") in
connection with a letter of intent (the "Letter of Intent")
among the Registrant, JJDC and its affiliate Indigo Medical,
Inc. ("Indigo"). Pursuant to the Letter of Intent, which is
subject to the negotiation of definitive agreements, Indigo
is to become the exclusive distributor outside the United
States of certain of the Registrant's products. The Note is
convertible into Common Stock of the Registrant at the
initial public offering price.
The sales of securities referenced in paragraphs (1), (2), (4) and
(5) were either sold to persons outside the United States or were deemed to be
exempt from registration under the Securities Act of 1933 in reliance on
Section 4(2) thereof. The securities referenced in paragraph (3) were either
granted to persons outside the United States or were deemed to be exempt from
registration under the Securities Act of 1933 in reliance on Rule 701
promulgated under Section 3(b) thereof, as transactions by an issuer not
involving a public offering or transactions pursuant to compensatory benefit
plans and contracts relating to compensation as provided under Rule 701. The
recipients of securities in each such transaction represented their intention
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 and instruments issued in such transactions.
All recipients had adequate access, though their relationships with the
Company, to information about the Company.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
1.1 Form of Underwriting Agreement**
3.1 Certificate of Incorporation of the Registrant*
3.2 Bylaws of the Registrant*
4.1 Specimen Certificate for Shares**
5.1 Opinion of Arnold & Porter, U.S. Counsel to the Registrant**
10.1 Letter Agreements between Dimotech Ltd. and the Registrant**
10.2 Employment Agreement dated May 31, 1996 between Peter A. Bick,
M.D., and the Registrant*
10.3 [Reserved]
10.4 Agreement between Oren Globerman and the Registrant*
10.5 Agreement between Dr. Mordechay Beyar and Registrant*
10.6 1995 Stock Option Plan of the Registrant, together with a
form of agreement pursuant thereto*
10.7 Lease for Hertzliya, Israel facility (English Translation)*
10.8 1998 Long-Term Incentive Plan of the Registrant, together with a
form of agreement pursuant thereto**
10.9 Debenture dated December 10, 1996 issued by the Registrant to
Medtronic, Inc.*
10.10 Technology Development and License Agreement dated as of March
16, 1998 among the Registrant, TomoTherapeutics, Inc. and the
Titan Corporation**
</TABLE>
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<TABLE>
<S> <C>
10.11 Letter of Intent dated as of May 1, 1998 among the Registrant,
Indigo Medical, Inc. and Johnson & Johnson Development
Corporation**
10.12 Promissory Note dated as of May 1, 1998 issued by the Registrant to
Johnson & Johnson Development Corporation**
10.13 Agreement in Principle dated March 25, 1998 between Influence
Medical Technologies, Ltd. and Galil Medical Ltd.**
10.14 Letter agreement dated as of January 15, 1998 between the
Registrant and Peter A. Bick, M.D., amending Dr. Bick's Employment
Agreement**
16.1 Letter regarding Change in Certifying Accountant*
21.1 Subsidiaries of the Registrant*
23.1 Consent of Arnold & Porter, U.S. Counsel to the Registrant
(contained in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP, independent accountants*
23.3 Consent of Levisohn, Lerner, Berger & Langsam, Patent Counsel to
the Registrant*
24.1 Powers of Attorney*
27.1 Financial Data Schedule
</TABLE>
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* Previously filed.
** To be filed by amendment.
(b) Schedules
All schedules are omitted because they are not required, are not
applicable or the information is included in the 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 of Shares in such denominations and registered in such names as
required by the Underwriters to permit prompt delivery of Shares to each
purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the 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, 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; and
(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, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-1 and has duly caused
this Amendment No. 2 to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in New York, New York on the
25th day of June 1998.
INFLUENCE, INC.
By: /s/ Peter A. Bick, M.D
---------------------------------
Name: Peter A. Bick, M.D
Title: President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board of Directors and June 25, 1998
Director
- ---------------------------------------
Lewis C. Pell
* Vice Chairman of the Board of Directors and June 25, 1998
Director
- ---------------------------------------
Mordechay Beyar, M.D.
* Vice Chairman of the Board of Directors and June 25, 1998
Director
- ---------------------------------------
Oren Globerman
/s/ Peter A. Bick, M.D. President, Chief Executive Officer and June 25, 1998
- --------------------------------------- Director (Principal Executive Officer)
Peter A. Bick, M.D.
- --------------------------------------- Director
Shimon Eckhouse
/s/ Howard Machek Chief Financial Officer, Vice President, June 25, 1998
- --------------------------------------- Finance, and Treasurer (Principal Accounting
Howard Machek and Financial Officer)
*By: /s/ Peter A. Bick, M.D June 25, 1998
---------------------------------
(Attorney-in-fact)
</TABLE>
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<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF INFLUENCE, INC. FOR THE QUARTER ENDED
MARCH 31, 1998 AND FOR THE YEAR ENDED DECEMBER 31, 1997, AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS YEAR
<FISCAL-YEAR-END> DEC-31-1998 DEC-31-1997
<PERIOD-START> JAN-01-1998 JAN-01-1997
<PERIOD-END> MAR-31-1998 DEC-31-1997
<CASH> 1,097 2,737
<SECURITIES> 1,458 2,459
<RECEIVABLES> 554 428
<ALLOWANCES> 47 37
<INVENTORY> 1,037 918
<CURRENT-ASSETS> 4,923 7,469
<PP&E> 1,517 1,485
<DEPRECIATION> 294 233
<TOTAL-ASSETS> 6,146 8,721
<CURRENT-LIABILITIES> 2,016 1,848
<BONDS> 0 0
0 0
7 7
<COMMON> 4 4
<OTHER-SE> 4,119 6,862
<TOTAL-LIABILITY-AND-EQUITY> 6,146 8,721
<SALES> 714 1,114
<TOTAL-REVENUES> 714 1,114
<CGS> 658 2,765
<TOTAL-COSTS> 2,937 9,065
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 0 738
<INCOME-PRETAX> (2,860) (10,850)
<INCOME-TAX> 0 0
<INCOME-CONTINUING> (2,860) (10,850)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (2,860) (10,850)
<EPS-PRIMARY> (0.54) (2.10)
<EPS-DILUTED> (0.54) (2.10)
</TABLE>
