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As filed with the Securities and Exchange Commission on December 4, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PUMA TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 7372 77-0349154
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD (I.R.S. EMPLOYER
OF INCORPORATION INDUSTRIAL CLASSIFICATION IDENTIFICATION
OR ORGANIZATION) CODE NUMBER) NUMBER)
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2550 NORTH FIRST STREET, SUITE 500
SAN JOSE, CA 95131
(408) 321-7650
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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BRADLEY A. ROWE
CHIEF EXECUTIVE OFFICER
2550 NORTH FIRST STREET, SUITE 500
SAN JOSE, CA 95131
(408) 321-7650
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
ADELE C. FREEDMAN, ESQ.
GENERAL COUNSEL ASSOCIATES LLP
1891 LANDINGS DRIVE
MOUNTAIN VIEW, CA 94043
(650) 428-3900
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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 the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), check the following
box: /X/
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: / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================== =================== ================= =================== ===================
Title of Amount to be Proposed Proposed Amount of
Securities to Registered Maximum Maximum Registration Fee
be Registered Offering Price Aggregate
Per Share(1) Offering Price(1)
============================================== =================== ================= =================== ===================
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 439,379 $8.15625 $3,583,685 $948.25
============================================== =================== ================= =================== ===================
</TABLE>
(1) Estimated solely for purposes of calculation of the registration fee based
on the high and low sales prices of the Registrant's Common Stock on the
Nasdaq National Market on November 28, 2000.
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.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PRELIMINARY, SUBJECT TO COMPLETION, DATED DECEMBER 4, 2000
PROSPECTUS
439,379 SHARES
PUMA TECHNOLOGY, INC.
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COMMON STOCK
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The selling stockholders listed on page 20 are offering up to
439,379 shares of Puma Technology, Inc. common stock. We sold the shares to
the selling stockholders on July 6, 2000, October 18, 2000 and November 7,
2000 in unrelated private transactions.
The prices at which such stockholders may sell the shares will be
determined by the prevailing market price for the shares or in negotiated
transactions. We will not receive any of the proceeds from the sale of the
shares.
Our common stock is quoted on the Nasdaq National Market under the
symbol "PUMA." On November 28, 2000, the average of the high and low price for
the common stock was $8.15625.
Investing in our common stock involves risks. See "Business Risks"
beginning on page 2 of this prospectus for certain risks and uncertainties that
you should consider.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is December __, 2000.
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TABLE OF CONTENTS
<TABLE>
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PAGE
<S> <C>
Where You Can Find More Information..................................... 1
About Puma.............................................................. 2
Business Risks.......................................................... 2
Plan of Distribution.................................................... 17
Selling Stockholders.................................................... 20
Legal Matters........................................................... 21
Experts................................................................. 21
</TABLE>
No person is authorized to give any information or to make any
representations, other than those contained in this prospectus, in connection
with the offering described herein, and, if given or made, such information or
representations must not be relied upon as having been authorized by us or the
selling stockholders. This prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, nor shall there be any sale of these securities
by any person in any jurisdiction in which it is unlawful for such person to
make such offer, solicitation or sale. Neither the delivery of this prospectus
nor any sale made hereunder shall under any circumstances create an implication
that the information contained herein is correct as of any time subsequent to
the date hereof.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
operation of the Public Reference Room. Our SEC filings are also available to
the public at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed.
(a) Annual Report on Form 10-K for the fiscal year ended July 31, 2000,
filed with the SEC on October 27, 2000, including certain information in our
Definitive Proxy Statement in connection with our 2000 Annual Meeting of
Stockholders;
(b) Our Current Report on Form 8-K filed October 17, 2000; and
(c) The description of our common stock contained in our registration
statement on Form 8-A filed November 8, 1996, including any amendments or
reports filed for the purpose of updating such descriptions.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Kelly Hicks, Vice President of Operations and Chief Financial Officer
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Puma Technology, Inc.
2550 North First Street, Suite 500
San Jose, CA 95131
(408) 321-7650
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have authorized no
one to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of the document.
ABOUT PUMA
We are a Delaware corporation. Our principal executive offices are
located at 2550 North First Street, Suite 500 San Jose, CA 95131 and our
telephone number at that address is (408) 321-7650. In this prospectus
references to "Puma," "we," "us" and "our" refer to Puma Technology, Inc. unless
the context requires otherwise.
BUSINESS RISKS
An investment in our common stock offered pursuant to this prospectus
involves a high degree of risk. Our common stock should not be purchased if you
cannot afford the loss of your entire investment. Purchasers should carefully
consider the following risk factors in conjunction with the other information
included and incorporated by reference in this prospectus before purchasing or
otherwise acquiring our common stock. Our business, operating results and
financial condition could be adversely affected by any of the following risks.
The trading price of our common stock could decline due to any of these risks,
and you could lose all or part of your investment. You should also refer to the
other information set forth or incorporated by reference in this prospectus,
including our financial statements and the related notes.
This prospectus also contains forward-looking statements that involve
risks and uncertainties. These statements relate to our future plans,
objectives, expectations and intentions, and the assumptions underlying or
relating to any of these statements. These statements may be identified by the
use of words such as "expects," "anticipates," "intends," and "plans" and
similar expressions. Our actual results could differ materially from those
discussed in these statements. Factors that could contribute to such differences
include, but are not limited to, those discussed below and elsewhere in this
prospectus.
BECAUSE WE HAVE LIMITED INTERNET OPERATING HISTORY, IT IS DIFFICULT TO
EVALUATE OUR BUSINESS, AND WE MAY FACE VARIOUS RISKS, EXPENSES AND DIFFICULTIES
ASSOCIATED WITH EARLY STAGE COMPANIES.
Historically, we have licensed our products and technology primarily to
PC OEMs, corporations and to end users through our channels of distribution. In
the second quarter of fiscal 2000, we launched our Internet initiative. This
initiative has required us to add additional resources and to develop and market
our Intellisync.com portal and the products and technologies recently acquired
in the ProxiNet, NetMind and Dry Creek mergers, and the Windward Group and
SwiftTouch asset purchases. We plan to market and license our new web-based
products and solutions to wireless carriers, Web portals and individual
consumers. We also plan to offer these new products and solutions to
corporations. We expect to incur significant costs in completing the launch of
our Internet initiative.
Our overall operating results have changed significantly as a result of
developing and bringing to
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market our new Internet products. It is important to understand that our
historical financial statements include operating results of our recently
launched Internet initiative only to the extent that NetMind's historical
operating results have been reflected under pooling-of-interest accounting. As a
result of our Internet initiative, we expect our combined results to reflect an
operating loss for at least the next several quarters. There can be no assurance
that we will be able to achieve or sustain profitability.
Since we just launched our Internet initiative, there is little
information on which to evaluate our business and prospects as an Internet
company. An investor in our common stock should consider the risks, expenses and
difficulties that young companies frequently encounter in the new and rapidly
evolving markets for Internet products and services. These risks to us include:
- our evolving new business model;
- our need and ability to manage growth; and
- rapid evolution of technology.
To address these risks and uncertainties, we must take several steps,
including:
- creating and maintaining strategic relationships;
- expanding sales and marketing activities;
- integrating existing and acquired technologies;
- expanding our customer base and retaining key clients;
- introducing new services, including our Professional Services
Organization;
- managing rapidly growing operations, including new facilities and
information technology infrastructure;
- competing in a highly competitive market; and
- attracting, retaining and motivating key employees.
We may not be successful in implementing any of our strategies or in
addressing these risks and uncertainties. We expect that our operating expenses
will continue to increase, primarily as a result of our investment in our new
Internet product initiative. Moreover, even if we accomplish our objectives, we
still may not achieve sustainable profitability in the future.
We have invested substantial amounts in technology and infrastructure
development and development of our professional services organization. We expect
to continue to invest substantial financial and other resources to develop and
introduce new Internet and wireless products and services, and to expand our
sales and marketing organizations, our professional services organization,
strategic relationships and operating infrastructure. We expect that our cost of
revenue, sales and marketing expenses, general and administrative expenses,
operations and customer support expenses, and depreciation and amortization
expenses will continue to increase in absolute dollars and may increase as a
percent of revenue. If revenue does not correspondingly increase, our operating
results and financial condition could be negatively affected.
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HOSTING OUR MOBILE APPLICATION PLATFORM ON INTELLISYNC.COM MAY NOT
OCCUR OR MAY NOT BE SUCCESSFUL; AND, IF SUCCESSFUL, MAY DIVERT OUR ATTENTION
FROM OUR EXISTING PRODUCT LICENSE BUSINESS, WHICH COULD RESULT IN LOWER REVENUE
FROM SUCH BUSINESS.
In late October, we announced the launch of a nationwide beta test
of the Intellisync.com Web service, our Mobile Application Platform. We
expect that Intellisync.com will be made available to the public in the first
half of calendar 2001. As part of the public launch, we intend to announce
the fee structure for the premium services that we plan to offer on our
Intellisync.com service. Any delay in launching Intellisync.com may have a
negative effect on our revenue and results of operations. In addition, even
if we launch it, our customers may not choose to use MAP through
Intellisync.com for their applications for a variety of reasons, including:
the actual or perceived reduction in security protections of mobile solutions
hosted on the Internet; the possible reluctance to be dependent on a third
party to host important information and infrastructure and to perform basic
support and other functions; and the possible inability of MAP to be able to
support many users in an enterprise-wide environment. Although we expect to
derive a significant portion of our future revenue from our Intellisync.com
subscription offering, we have not yet commercially introduced it and we do
not have a proven expense and revenue model for it. Intellisync.com may not
be commercially viable if our expense and revenue model is not acceptable to
our customers. This would seriously harm our business, particularly if the
failure of Intellisync.com and MAP to achieve market acceptance negatively
affects sales of our other products and services. In addition, if our
customers adopt the MAP offering through Intellisync.com, we may experience a
decline in the growth of our existing product license business.
THE SIZE OF THE MOBILE COMPUTING MARKET CANNOT BE ACCURATELY PREDICTED,
AND IF OUR MARKET DOES NOT GROW AS WE EXPECT, OUR REVENUE WILL BE BELOW OUR
EXPECTATIONS AND OUR BUSINESS AND FINANCIAL RESULTS WILL SUFFER.
We are focusing on expanding into the mobile computing market, an
unproven market. Accordingly, the size of this market cannot be accurately
estimated and therefore we are unable to accurately determine the potential
demand for our products and services. If our customer base does not expand or if
there is not widespread acceptance of our products and services, our business
and prospects will be harmed. We believe that our potential to grow and increase
the market acceptance of our products depends principally on the following
factors, some of which are beyond our control:
- the effectiveness of our marketing strategy and efforts;
- our product and service differentiation and quality;
- our ability to provide timely, effective customer support;
- our distribution and pricing strategies as compared to our
competitors;
- growth in the sales of handheld devices supported by our software
and growth in wireless network capabilities to match end user
demand and requirements;
- our industry reputation; and
- general economic conditions such as downturns in the computer or
software markets.
OUR BUSINESS AND PROSPECTS DEPEND ON DEMAND FOR AND MARKET ACCEPTANCE
OF THE INTERNET, WIRELESS DEVICES AND MOBILE COMPUTING DEVICES.
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The increased use of the Internet, wireless devices and mobile
computing devices for retrieving, sharing and transferring information among
businesses, consumers, suppliers and partners, and for Internet personalization
services has only begun to develop in recent years. Our success will depend in
large part on continued growth in the use of the Internet, wireless devices and
mobile computing devices. Critical issues concerning the commercial use of the
Internet, wireless devices and mobile computing devices, including security,
reliability, cost, ease of access and use, quality of service, regulatory
initiatives and necessary increases in bandwidth availability, remain unresolved
and are likely to affect the development of the market for our services. The
adoption of the Internet, wireless devices and mobile computing devices for
information retrieval and exchange, commerce and communications generally will
require the acceptance of a new medium of conducting business and exchanging
information. Demand for and market acceptance of the Internet, wireless devices
and mobile computing devices are subject to a high level of uncertainty and are
dependent on a number of factors, including:
- the growth in access to and market acceptance of new interactive
technologies;
- emergence of a viable and sustainable market for Internet
personalization services;
- the development of technologies that facilitate interactive
communication between organizations; and
- increases in bandwidth for data transmission.
If the market for Internet personalization services or the Internet,
wireless devices and mobile computing devices as a commercial or business medium
does not develop, or develops more slowly than expected, our business, results
of operations and financial condition will be seriously harmed.
Specifically, even if an Internet personalization services market does
develop, services that we currently offer or may offer in the future may not
achieve widespread market acceptance. Failure of our current and planned
services to operate as expected could delay or prevent their adoption. If our
target customers do not adopt, purchase and successfully deploy our current and
planned services, our revenue will not grow significantly and our business,
results of operations and financial condition will be seriously harmed. We have
not taken any steps to mitigate the risks associated with reduced demand for our
existing Internet personalization services.
OUR MARKET CHANGES RAPIDLY DUE TO CHANGING TECHNOLOGY AND EVOLVING
INDUSTRY STANDARDS. IF WE DO NOT ADAPT TO MEET THE SOPHISTICATED NEEDS OF OUR
CUSTOMERS, OUR BUSINESS AND PROSPECTS WILL SUFFER.
The market for our services is characterized by rapidly changing
technology, evolving industry standards and frequent new service introductions.
Our future success will depend to a substantial degree on our ability to offer
services that incorporate leading technology, address the increasingly
sophisticated and varied needs of our current and prospective customers and
respond to technological advances and emerging industry standards and practices
on a timely and cost-effective basis. You should be aware that:
- our technology or systems may become obsolete upon the
introduction of alternative technologies;
- we may not have sufficient resources to develop or acquire new
technologies or to introduce new services capable of competing
with future technologies or service offerings; and
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- the price of the services we provide is expected to decline as
rapidly as the cost of any competitive alternatives.
We may not be able to effectively respond to the technological
requirements of the changing market. To the extent we determine that new
technologies and equipment are required to remain competitive, the development,
acquisition and implementation of such technologies and equipment are likely to
continue to require significant capital investment by us. Sufficient capital may
not be available for this purpose in the future, and even if it is available,
investments in new technologies may not result in commercially viable
technological processes and there may not be commercial applications for such
technologies. If we do not develop and introduce new products and services and
achieve market acceptance in a timely manner, our business and prospects may
suffer.
OPERATING RESULTS MAY FLUCTUATE SIGNIFICANTLY AND MAY BE DIFFICULT TO
PREDICT.
Our operating results have fluctuated in the past, and with our
Internet initiative and the ProxiNet, NetMind and Dry Creek acquisitions and
the Windward Group and SwiftTouch asset purchases, our operating results are
likely to continue to fluctuate significantly. A number of factors, many of
which are outside of our control, are likely to cause fluctuations in
operating results, including, but not limited to:
- the demand for our products and services;
- our success in developing new products and integrating acquired
technologies;
- the timing of new product introductions by us and our
competitors;
- market acceptance of our new and enhanced products and services;
- market acceptance of handheld devices generally, and those
supported by our products and services;
- the emergence of new industry standards;
- the timing of customer orders;
- the mix of products and services sold;
- product life cycles;
- competition;
- the mix of distribution channels employed;
- seasonal trends;
- the timing and magnitude of our capital expenditures, including
costs relating to the expansion of operations;
- the evolving and unpredictable nature of the markets for our
products and mobile computing devices generally;
- the rate of growth of the Internet and the personal computer
market in general; and
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- general economic conditions.
In addition, we typically operate with a relatively small order
backlog. As a result, quarterly sales and operating results depend in part on
the volume and timing of orders received and fulfilled within the quarter, which
are difficult to forecast. A significant portion of our expense levels is fixed
in advance, based in large part on our resource requirements to meet planned
product and customer requirements. If revenue is below expectations in any given
quarter, the adverse impact of the shortfall on operating results may be
magnified by our inability to adjust spending to compensate for the shortfall.
Therefore, a shortfall in actual revenue as compared to estimated revenue would
have an immediate adverse effect on our business, operating results and
financial condition that could be material.
Due to our ongoing efforts to expand into retail and reseller channels,
we are focusing our efforts on licensing our server and personal applications to
corporations and licensing our Software Development Kits to software developers
and mobile computing device manufacturers. As a result, we expect that our
notebook and PC OEM revenue will decrease as a percentage of our overall
revenue. This new sales strategy has the following risks:
- sales into these channels are harder to predict and may have
lower margins than sales in other channels;
- we have a very limited history in penetration and support for
these channels;
- the average transaction size and sales cycle vary significantly,
making forecasting difficult;
- smaller transactions may have relatively higher administrative
costs;
- any significant deferral of purchases of our products by
customers could jeopardize our operating results in any
particular quarter;
- to the extent that significant sales occur earlier than expected,
operating results for subsequent quarters may be adversely
affected;
- products that are accepted in the OEM market may not be readily
accepted by corporations;
- we may incur increased costs related to new infrastructure
requirements; and
- planned marketing strategy may require significant expenditures
but may not have immediate or future beneficial effects or sales.
Our gross margin on service revenue, particularly non-recurring
engineering service and professional service revenue, is substantially lower
than gross margin on license revenue. We have recently acquired Dry Creek
and, in connection with the acquisition of assets from the Windward Group, we
hired a number of employees of the Windward Group, which forms the basis of
our professional services group, and, consequently, we expect that
professional services revenue, as well as non-recurring engineering service
revenue, will increase in future quarters. Any increase in non-recurring
engineering service revenue would have a corresponding increase in cost of
revenue and would have an adverse effect on our gross margins as a percent of
total revenue. We may also change prices or increase spending in response to
competition or to pursue new market opportunities.
The operating results of many software companies reflect seasonal
fluctuation. For example, sales
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in Europe and certain other countries typically are adversely affected in the
summer months when business activity is reduced. Our revenue and operating
results may be adversely affected by diminished demand for products on a
seasonal basis.
Period-to-period comparisons of operating results are not a good
indication of future performance. It is likely that operating results in some
quarters will be below market expectations. In this event, the price of our
common stock is likely to decline.
RAPID GROWTH IN OUR BUSINESS COULD STRAIN OUR RESOURCES AND HARM OUR
BUSINESS AND FINANCIAL RESULTS.
The planned expansion of our Internet initiative as well as growth in
our existing enterprise business will place a significant strain on our
management, financial controls, operations systems, personnel and other
resources. To date, revenue recognized from our Internet initiative, $2.0
million in fiscal 2000, has been limited. If we are successful in implementing
our marketing strategy, we also expect the demands on our technical support
resources to grow rapidly, and we may experience difficulties responding to
customer demand for our services and providing technical support in accordance
with our customers' expectations. We expect that these demands will require not
only the addition of new management personnel, but also the development of
additional expertise by existing management personnel and the establishment of
long-term relationships with third-party service vendors. Additionally, we have
recently opened additional facilities in New Hampshire and intend to open new
offices in Europe. We may encounter difficulties in integrating information and
communications systems in multiple locations. We may not be able to keep pace
with growth, successfully implement and maintain our operational and financial
systems or successfully obtain, integrate and utilize the employees, facilities,
third-party vendors and equipment, or management, operational and financial
resources necessary to manage a developing and expanding business in our
evolving and increasingly competitive industry. If we are unable to manage
growth effectively, we may lose customers or fail to attract new customers and
our business and financial results will suffer.
BECAUSE TRACKING INTERNET-BASED INFORMATION ACROSS THE ENTIRE WORLDWIDE
WEB IS A HIGHLY COMPLEX PROCESS, OUR PRODUCTS AND SERVICES MAY HAVE ERRORS OR
DEFECTS THAT COULD SERIOUSLY HARM OUR BUSINESS.
The tracking of Internet-based information across the entire worldwide
Web is a highly complex process. We and our customers have, from time to time,
discovered errors and defects in our software. In the future, there may be
additional errors and defects in our software that may adversely affect our
products and services. If we are unable to efficiently fix errors or other
problems that may be identified, we could experience:
- loss of or delay in revenue and loss of market share;
- loss of customers;
- failure to attract new customers or achieve market acceptance;
- diversion of development resources;
- loss of reputation and credibility;
- increased service costs; and
- legal actions by our customers.
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IF WE ARE UNABLE TO SUCCESSFULLY EXPAND OUR PROFESSIONAL SERVICES
ORGANIZATION, CUSTOMER SATISFACTION AND DEMAND FOR OUR PRODUCTS WILL SUFFER.
We believe that successful implementation of our technology by our
customers and future growth in our product sales depend on our ability to
provide our customers with professional services, including customer support,
training, consulting and initial implementation and deployment of our products.
We have developed an in-house professional services organization with employees
who can perform these tasks and who also educate third-party systems integrators
in the use of our products so that they can provide these services to our
customers. Competition for qualified professional services personnel is intense
due to the limited number of people who have the requisite knowledge and skills.
As a result, we may not be able to attract or retain a sufficient number of
qualified professional services personnel. If we are unable to develop
sufficient relationships with third-party systems integrators and our
professional services organization is under-staffed, we could be unable to
complete implementations in a timely manner, which would cause delays in revenue
recognition. In addition, if we do not provide adequate customer support,
consulting and training for our customers, we could face customer
dissatisfaction, damage to our reputation and decreased overall demand for our
products.
ACQUISITIONS WE HAVE MADE AND MAY MAKE IN THE FUTURE COULD DISRUPT OUR
BUSINESS OR NOT BE SUCCESSFUL AND HARM OUR FINANCIAL CONDITION.
We have in the past acquired or made investments in, and intend in
the future to acquire or make investments in other complementary companies,
products and technologies. We have acquired certain assets of the Windward
Group and SwiftTouch and acquired Dry Creek, NetMind, ProxiNet, SoftMagic
Corporation, RealWorld Solutions, Inc. and IntelliLink Corporation. In the
event of any future acquisitions or investments, we could:
- issue stock that would dilute the ownership of our then existing
stockholders;
- incur debt;
- assume liabilities;
- face SEC challenges to the accounting treatment of these
acquisitions which may result in changes to our financial
statements and cause us to incur charges to earnings over time
that we did not expect;
- incur amortization expenses related to goodwill and other
intangible assets; or
- incur large and immediate write-offs.
These acquisitions and investments also involve numerous risks,
including:
- problems integrating the operations, technologies or products
purchased with those we already have;
- unanticipated costs and liabilities;
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- diversion of management's attention from our core business;
- adverse effects on existing business relationships with suppliers
and customers;
- risks associated with entering markets in which we have no or
limited prior experience; and
- potential loss of key employees, particularly those of the
acquired organizations.
WE HAVE ANTI-TAKEOVER DEFENSES THAT COULD DELAY OR PREVENT A TAKEOVER THAT
STOCKHOLDERS MAY CONSIDER FAVORABLE.
Certain provisions of our certificate of incorporation and bylaws and
provisions of Delaware law could have the effect of delaying, deferring or
preventing an acquisition of us. These provisions include a classified board of
directors and limitations on actions by our stockholders by written consent. In
addition, our board of directors has the right to issue up to 2,000,000 shares
of "blank check" preferred stock without stockholder approval, which could be
used to dilute the stock ownership of a potential hostile acquirer. The
preferred stock we issue could have mandatory redemption features, liquidation
preference and other rights that are senior to the rights of common
stockholders. Delaware law also imposes some restrictions on mergers and other
business combinations between us and any holder of 15% or more of our
outstanding common stock. Although we believe these provisions provide for an
opportunity to receive a higher bid by requiring potential acquirers to
negotiate with our board of directors, these provisions apply even if the offer
may be considered beneficial by some stockholders.
In addition, our stockholders may not take actions by written consent and
our stockholders are limited in their ability to make proposals at stockholder
meetings.
Our common stock will likely be subject to substantial price and volume
fluctuations due to a number of factors, some of which are beyond our control.
The trading price of our common stock has been and is likely to continue to
be highly volatile. Our stock price is subject to wide fluctuations in response
to a variety of factors including:
- quarterly variations in operating results;
- announcements of technological innovations;
- announcements of new software or services by us or our
competitors;
- changes in financial estimates by securities analysts; or
- other events beyond our control.
In addition, the stock market has experienced significant price and
volume fluctuations that have particularly affected the trading prices of
equity securities of many high technology companies. These fluctuations have
often been unrelated or disproportionate to the operating performance of
these companies. Any negative change in the public's perception of the
Internet or Internet software companies or companies in the wireless
communications market could depress our stock price regardless of our
operating results.
Recently, when the market price of a stock has been volatile, holders of
that stock have often
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<PAGE>
instituted securities class action litigation against the company that issued
the stock when such stock declines. If any of our stockholders brought such a
lawsuit against us, we could incur substantial costs defending the lawsuit. The
lawsuit could also divert the time and attention of our management.
We expect that our future operating results could fluctuate significantly
as a result of numerous factors including, but not limited to, the demand for
our products, our success in developing new products, the timing of new product
introductions by us and our competitors, the timing of releases of new handheld
devices by our customers, market acceptance of our new and enhanced products,
the emergence of new industry standards, the timing of customer orders, the mix
of products sold, competition, the mix of distribution channels employed, the
evolving and unpredictable nature of the markets for our products and mobile
computing devices generally, the rate of growth of the personal computer market
in general and general economic conditions.
WE MAY REQUIRE ADDITIONAL CAPITAL, WHICH WE MAY NOT BE ABLE TO OBTAIN.
The expansion and development of our business may require additional
capital in the future to fund our operating losses, working capital needs and
capital expenditures. Historically, we have has relied on the capital
markets, including a private placement in March 2000, to raise money for our
working capital and capital expenditure needs. The capital markets are very
volatile and we may not be able to obtain future equity or debt financing in
the future on satisfactory terms or at all. Our failure to generate
sufficient cash flows from sales of products and services or to raise
sufficient funds may require us to delay or abandon some or all of our
development and expansion plans or otherwise forego market opportunities. Our
inability to obtain additional capital on satisfactory terms may delay or
prevent the expansion of our business, which could cause our business,
operating results and financial condition to suffer.
Our working capital is primarily comprised of cash, short-term
investments, accounts receivable, inventory, other current assets, accounts
payable, accrued expenses, deferred revenue and current portion of notes
payable. The timing and amount of our future capital requirements may vary
significantly depending on numerous factors, including our financial
performance, technological, competitive and other developments in our
industry. These factors may cause our actual revenue and costs to vary from
expected amounts, possibly to a material degree, and such variations are
likely to affect our future capital requirements.
WE ARE DEPENDENT ON OUR INTERNATIONAL OPERATIONS FOR A SIGNIFICANT PORTION
OF OUR REVENUES.
Our international activities expose us to additional risks. International
revenue, primarily from customers based in Japan, accounted for 27%, 40% and 48%
of our revenue in fiscal 2000, 1999 and 1998, respectively. A key component of
our strategy is to further expand our international activities. As we continue
to expand internationally, we are increasingly subject to risks of doing
business internationally, including:
- unexpected changes in regulatory requirements and tariffs;
- export controls relating to encryption technology and other
export restrictions;
- political and economic instability;
- difficulties in staffing and managing foreign operations;
- reduced protection for intellectual property rights in some
countries;
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<PAGE>
- longer payment cycles;
- problems in collecting accounts receivable;
- potentially adverse tax consequences;
- seasonal reductions in business activity during the summer months
in Europe and certain other parts of the world;
- fluctuations in currency exchange rates that may make our
products more expensive to international customers;
- causing gains and losses on the conversion to U.S. dollars of
accounts receivable and accounts payable arising from
international operations due to foreign currency denominated
sales;
- nonrefundable withholding taxes on royalty income from customers
in certain countries, such as Japan and Taiwan;
- an adverse effect on our provision for income taxes based on the
amount and mix of income from foreign customers; and
- exposure to risk of non-payment by customers in foreign countries
with highly inflationary economies.
Any of these risks could harm our international operations. For example,
some European countries already have laws and regulations related to content
distributed on the Internet and technologies used on the Internet that are more
strict than those currently in force in the United States. The European
Parliament has recently adopted a directive relating to the reform of copyright
in the European Community that will, if made into law, restrict caching and
mirroring. Any or all of these factors could cause our business and prospects to
suffer.
Our international sales growth will be limited if we are unable to
establish additional foreign operations, expand international sales channel
management and support, hire additional personnel, customize products for local
markets and develop relationships with international service providers,
distributors and device manufacturers. Even if we are able to successfully
expand international operations, we cannot be certain that we will succeed in
maintaining or expanding international market demand for our products.
FOREIGN EXCHANGE FLUCTUATIONS COULD DECREASE OUR REVENUES OR CAUSE US TO
LOSE MONEY, ESPECIALLY SINCE WE DO NOT HEDGE AGAINST CURRENCY FLUCTUATIONS.
To date, the majority of our customers have paid for our services in
U.S. dollars. For fiscal 2000, 1999 and 1998, costs denominated in foreign
currencies were nominal and we had minimal foreign currency losses during
those periods. However, we believe that in the future an increasing portion
of our costs will be denominated in foreign currencies. Fluctuations in the
value of the Yen, Euro or other foreign currencies may cause our business and
prospects to suffer. We will also be exposed to increased risk of non-payment
by our customers in foreign countries, especially those with highly
inflationary economies. We currently do not engage in foreign exchange
hedging activities and, although we have not
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<PAGE>
yet experienced any material losses due to foreign currency fluctuation, our
international revenues are currently subject to the risks of foreign currency
fluctuations and such risks will increase as our international revenues
increase.
REGULATIONS OR CONSUMER CONCERNS REGARDING PRIVACY ON THE INTERNET
COULD LIMIT MARKET ACCEPTANCE OF OUR PRODUCTS AND SERVICES.
Our products and services will allow our customers to develop and
maintain Web user profiles to tailor content to specific users. Profile
development involves both data supplied by the user and data derived from the
user's Web site behavior. Privacy concerns may cause users to resist providing
personal data or to avoid Web sites that track user behavior. In addition,
legislative or regulatory requirements may heighten consumer concerns if
businesses must notify Web site users that user profile data may be used to
direct product promotion and advertising to users. Other countries and political
entities, such as the European Union, have adopted such legislation or
regulatory requirements. The United States may do so in the future. If privacy
legislation is enacted or consumer privacy concerns limit the market acceptance
of personalization software, our business, financial condition and operating
results could be harmed.
We use cookies to provide users convenient access to the Web sites they
are minding and to track demographic information and user preferences. A cookie
is information keyed to a specific user that is stored on a computer's hard
drive, typically without the user's knowledge. Cookies are generally removable
by the user, although removal could affect the content available on a particular
site. A number of governmental bodies and commentators in the United States and
abroad have urged passage of laws limiting or abolishing the use of cookies. If
such laws are passed or if users begin to delete or refuse cookies as a common
practice, market demand for our products and services could be reduced.
ACTIONS BY MAJOR WEB SITE PROVIDERS TO BLOCK OUR SOFTWARE FROM MINDING
THEIR SITES COULD LIMIT MARKET ACCEPTANCE OF OUR PRODUCTS.
One of the primary benefits of our products and services is that they
bring users back to a Web site through click-throughs on links within our change
notifications. This is generally very beneficial to Web site providers. These
providers do, however, have the ability to detect our monitoring of their sites
and could block our access to their site. Widespread blocking of us by major Web
sites could seriously limit market acceptance of our products.
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<PAGE>
THERE ARE MANY COMPANIES PROVIDING COMPETING PRODUCTS AND SERVICES.
There are few substantial barriers to entry and we expect that we will
face additional competition from existing competitors and new market entrants in
the future.
We currently face direct competition with respect to individual
elements of our MAP including Sync-it, Browse-it and Mind-it. Sync-it faces
competition from Advanced Systems Network, Inc., Aether Software, Chapura, Inc.,
DataViz, Inc., Extended Systems, Inc., FusionOne, Inc., IBM Corporation,
Laplink.com, Inc., Motorola, Inc., Phone.com, Inc. and River Run Computers, Inc.
Browse-it's transformation and mobile content distribution features face
competition from AvantGo, Inc., Broadvision, Inc., InfoSpace, Inc., OpenTV, Inc.
and Oracle Corporation. Finally, Mind-it faces competition from Aeneid
Corporation, Alerts.com, Inc., and The Informant in the area of alerts and
notifications and competition from MicroStrategy, Inc., Net Perceptions, Inc.
and Personify, Inc. in the areas of personalization, profiling and analytics. In
addition to direct competition noted above, we face indirect competition from
existing and potential customers that may provide internally developed solutions
to each element of MAP.
Many of our competitors have substantially greater financial, technical
and marketing resources, larger customer bases, longer operating histories,
greater name recognition and more established relationships in the industry than
we do. Our larger competitors may be able to provide customers with additional
benefits in connection with their Internet systems and network solutions,
including reduced communications costs. As a result, these companies may be able
to price their products and services more competitively than we can and respond
more quickly than us to new or emerging technologies and changes in customer
requirements. If we are unable to compete successfully against our current or
future competitors, we may lose market share, and our business and prospects
would suffer.
Increased competition could result in:
- price and revenue reductions and lower profit margins;
- loss of customers or failure to obtain additional customers; and
- loss of market share.
Any one of these could materially and adversely affect our business,
financial condition and results of operations.
THE INTEGRATION OF KEY NEW EMPLOYEES AND OFFICERS INTO OUR MANAGEMENT
TEAM HAS INTERFERED, AND WILL CONTINUE TO INTERFERE, WITH OUR OPERATIONS.
We have recently hired a number of key employees and we are
currently seeking additional engineering, and sales and marketing personnel.
In addition, there has been turnover among our officers as two individuals
added as officers at the closing of the NetMind merger have since left
Pumatech. To integrate into our company, new employees must spend a
significant amount of time learning our business model and management system,
in addition to performing their regular duties. Accordingly, the integration
of new personnel has resulted and will continue to result in some disruption
to our ongoing operations. If we fail to complete this integration in an
efficient manner, our business and financial results will suffer.
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<PAGE>
WE MUST RETAIN AND ATTRACT KEY EMPLOYEES OR ELSE WE MAY NOT GROW OR
BE SUCCESSFUL.
We are highly dependent on key members of our management and
engineering staff. The loss of one or more of these officers or key employees
might impede the achievement of our business objectives. Furthermore, recruiting
and retaining qualified technical personnel to perform research, development and
technical support is critical to our success. If our business grows, we will
also need to recruit a significant number of management, technical and other
personnel for our business. Competition for employees in our industry and
geographic location is intense. We may not be able to continue to attract and
retain skilled and experienced personnel on acceptable terms.
OUR FAILURE TO ADEQUATELY PROTECT OUR PROPRIETARY RIGHTS MAY HARM OUR
COMPETITIVE POSITION.
We rely on a combination of patents, copyrights, trademark, service
mark and trade secret laws and contractual restrictions to establish and protect
proprietary rights in our products and services. However, we will not be able to
protect our intellectual property if we are unable to enforce our rights or if
we do not detect unauthorized use of our intellectual property.
Although we currently have 12 issued United States patents and have
an additional 12 patent applications pending, we cannot be certain that such
patents and patent applications will provide an adequate level of
intellectual property protection. In addition, we have corresponding
international patent applications pending under the Patent Cooperation Treaty
in countries to be designated at a later date with respect to some of the
patents. We cannot be certain that any pending or future patent applications
will be granted, that any pending or future patents will not be challenged,
invalidated or circumvented, or that rights granted under any patent that may
be issued will provide competitive advantages to us.
We have also provided our source code under escrow agreements and to
foreign translators which may increase the likelihood of misappropriation by
third parties.
We have applied for trademarks and service marks on certain terms
and symbols that we believe are important for our business. However, the
steps we have taken to protect our technology or intellectual property may be
inadequate. Our competitors may independently develop technologies that are
substantially equivalent or superior to ours. Moreover, in other regions
where we do business, such as in Africa, Asia-Pacific and Europe, there may
not be effective legal protection of patents and other proprietary rights
that we believe are important to our business.
As a matter of company policy, we enter into confidentiality and
assignment agreements with our employees, consultants and vendors. We also
control access to and distribution of our software, documents and other
proprietary information. Notwithstanding these precautions, it may be possible
for an unauthorized third party to copy or otherwise obtain and use our software
or other proprietary information or to develop similar software independently.
Policing unauthorized use of our products is difficult, particularly because the
global nature of the Internet makes it difficult to control the ultimate
destination or security of software and other transmitted data. The laws of
other countries may afford us little or no effective protection of our
intellectual property. The steps we have taken to prevent misappropriation of
our technology, including entering into agreements for that purpose may be
insufficient. In addition, litigation may be necessary in the future to enforce
our intellectual property rights, to protect our trade secrets, to determine the
validity and scope of the proprietary rights of others or to defend against
claims of infringement or invalidity. Such litigation, whether successful or
unsuccessful, could result in substantial costs and diversions of our management
resources, either of which could harm our business.
WE MAY BE UNABLE TO LICENSE NECESSARY TECHNOLOGY AND WE MAY BE SUBJECT
TO INFRINGEMENT CLAIMS BY THIRD PARTIES.
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<PAGE>
Our commercial success will also depend in part on not infringing the
proprietary rights of others and not breaching technology licenses that cover
technology used in our products. It is uncertain whether any third party patents
will require us to develop alternative technology or to alter our products or
processes, obtain licenses or cease activities that infringe on third party's
intellectual property rights. If any such licenses are required, we may not be
able to obtain such licenses on commercially favorable terms, if at all. Our
failure to obtain a license to any technology that we may require to
commercialize our products and services could cause our business and prospects
to suffer. Litigation may also be necessary to enforce any patents issued or
licensed to us or to determine the scope and validity of third party proprietary
rights.
WE ARE DEPENDENT ON NON-EXCLUSIVE LICENSES FOR CERTAIN TECHNOLOGY
INCLUDED IN OUR PRODUCTS.
We depend on development tools provided by a limited number of third
party vendors. Together with application developers, we rely primarily upon
software development tools provided by companies in the PC and mobile
computing device industries. If any of these companies fail to support or
maintain these development tools, we will have to support the tools ourselves
or transition to another vendor. Any maintenance or our support of the tools
or transition could be time consuming, could delay product release and
upgrade schedule and could delay the development and availability of third
party applications used on our products. Failure to procure the needed
software development tools or any delay in availability of third party
applications could negatively impact our ability and the ability of third
party application developers to release and support our products or they
could negatively and materially affect the acceptance and demand for our
products, business and prospects.
The risks associated with such non-exclusive third party licenses:
- If we are unable to continue to license the technology or to
license other necessary technologies for use with our products or
if there are substantial increases in royalty payments under
third-party licenses, it could jeopardize our operating results.
- The effective implementation of our products depends upon the
successful operation of these licenses in conjunction with our
products, and therefore any undetected errors in products
resulting from such licenses may prevent the implementation or
impair the functionality of our products, delay new product
introductions and injure our reputation. Such problems could have
a material adverse effect on our business, operating results and
financial condition.
- Although we are generally indemnified against claims that the
third party technology we license infringes the proprietary
rights of others, this indemnification is not always available
for all types of intellectual property rights (for example,
patents may be excluded) and, in some cases, the scope of such
indemnification is limited. Even if we receive broad
indemnification, third party indemnitors are not always
well-capitalized and may not be able to indemnify us in the event
of infringement, resulting in substantial exposure to us. There
can be no assurance that infringement or invalidity claims
arising from the incorporation of third party technology in our
products, and claims for indemnification from our customers
resulting from these claims, will not be asserted or prosecuted
against us. These claims, even if not meritorious, could result
in the expenditure of significant financial and managerial
resources in addition to potential product redevelopment costs
and delays, all of which could materially adversely affect our
business, operating results and financial condition.
OUR PRODUCTS MAY CONTAIN PRODUCT ERRORS THAT COULD SUBJECT US TO
PRODUCT LIABILITY CLAIMS.
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Our products may contain undetected errors or failures when first
introduced or as new versions are released, which can result in loss of or
delay in market acceptance and could adversely impact future operating
results. We do not currently maintain product liability insurance. Although
our license agreements contain provisions limiting our liability in the case
of damages resulting from use of the software, in the event of such damages,
we may be found liable, and in such event such damages could materially
adversely affect our business, operating results and financial condition.
IMPACT OF YEAR 2000
We are currently not aware of Year 2000 problems in any of our products,
critical systems or services. However, the success to date of our Year 2000
efforts cannot guarantee that a Year 2000 problem affecting third parties upon
which we rely will not become apparent in the future.
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares from time to time. The
selling stockholders will act independently of us in making decisions regarding
the timing, manner and size of each sale. The sales may be made on one or more
exchanges or in the over-the-counter market or otherwise, at prices and at terms
then prevailing or at prices related to the then current market price, or in
privately negotiated transactions. The selling stockholders may effect these
transactions by selling the shares to or through broker-dealers. The selling
stockholders may sell their shares in one or more of, or a combination of:
- a block trade in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction,
- purchases by a broker-dealer as principal and resale by a
broker-dealer for our account under this prospectus,
- an exchange distribution in accordance with the rules of an
exchange,
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers, and
- privately negotiated transactions.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. If the plan of
distribution involves an arrangement with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, the amendment or supplement
will disclose:
- the name of each selling stockholder and of the participating
broker-dealer(s),
- the number of shares involved,
- the price at which the shares were sold,
- the commissions paid or discounts or concessions allowed to the
broker-dealer(s), where applicable,
- that a broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus, and
- other facts material to the transaction.
From time to time, a selling stockholder may transfer, pledge, donate
or assign our shares of common stock to lenders or others and each of such
persons will be deemed to be a "selling stockholder" for purposes of this
prospectus. The number of shares of common stock beneficially owned by the
selling stockholder will decrease as and when it takes such actions. The plan of
distribution for the selling stockholders' shares of common stock sold under
this prospectus will otherwise remain unchanged, except that the transferees,
pledgees, donees or other successors will be selling stockholders hereunder.
Upon being notified by a selling stockholder that a donee or pledgee intends to
sell more than 500 shares, we
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<PAGE>
will file a supplement to this prospectus.
The selling stockholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
these transactions, broker-dealers may engage in short sales of the shares in
the course of hedging the positions they assume with selling stockholders. The
selling stockholders also may sell shares short and redeliver the shares to
close out short positions. The selling stockholders may enter into option or
other transactions with broker-dealers which require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer the shares under this prospectus. The selling stockholders also may
loan or pledge the shares to a broker-dealer. The broker-dealer may sell the
loaned shares, or upon a default the broker-dealer may sell the pledged shares
under this prospectus.
In effecting sales, broker-dealers engaged by the selling stockholders
may arrange for other broker-dealers to participate in the resales.
Broker-dealers or agents may receive compensation in the form of commissions,
discounts or concessions from selling stockholders. Broker-dealers or agents may
also receive compensation from the purchasers of the shares for whom they act as
agents or to whom they sell as principals, or both. Compensation as to a
particular broker-dealer might be in excess of customary commissions and will be
in amounts to be negotiated in connection with the sale. Broker-dealers or
agents and any other participating broker-dealers or the selling stockholders
may be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933, as amended, in connection with sales of the shares.
Accordingly, any commission, discount or concession received by them and any
profit on the resale of the shares purchased by them may be deemed to be
underwriting discounts or commissions under the Securities Act. Because selling
stockholders may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, the selling stockholders will be subject to the
prospectus delivery requirements of the Securities Act.
In addition, any securities covered by this prospectus that qualify for
sale under Rule 144 promulgated under the Securities Act may be sold under Rule
144 rather than under this prospectus. The selling stockholders have advised
that they have not entered into any agreements, understandings or arrangements
with any underwriters or broker-dealers regarding the sale of their securities.
There is no underwriter or coordinating broker acting in connection with the
proposed sale of shares by the selling stockholders. The shares will be sold
only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in some states the shares may not
be sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
Under applicable rules and regulations under the Securities Exchange
Act of 1934, as amended, any person engaged in the distribution of the shares
may not simultaneously engage in market making activities with respect to our
common stock for a period of two business days prior to the commencement of the
distribution. In addition, each selling stockholder will be subject to
applicable provisions of the Exchange Act and the associated rules and
regulations under the Exchange Act, including Regulation M, which provisions may
limit the timing of purchases and sales of shares of our common stock by the
selling stockholders.
We will make copies of this prospectus available to the selling
stockholders and have informed them of the need to deliver copies of this
prospectus to purchasers at or prior to the time of any sale of the shares. We
will bear all costs, expenses and fees in connection with the registration of
the shares. The selling stockholders will bear all commissions and discounts, if
any, attributable to the sales of the shares. The selling stockholders may agree
to indemnify any broker-dealer or agent that participates in transactions
involving sales of the shares against specific liabilities, including
liabilities arising under the Securities Act. The selling stockholders have
agreed to indemnify specific persons, including broker-
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dealers and agents, against specific liabilities in connection with the offering
of the shares, including liabilities arising under the Securities Act.
We have agreed to maintain the effectiveness of this registration
statement until each selling stockholder can sell all of the shares it holds
under Rule 144(k) promulgated under the Securities Act. The selling stockholders
may sell all, some or none of the shares offered by this prospectus.
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<PAGE>
SELLING STOCKHOLDERS
The table below lists the selling stockholders, the number of shares of
our common stock which each owned prior to the offering, the number of shares of
our common stock subject to sale pursuant to this Prospectus, and the number of
the shares of our common stock which each would own assuming that such number of
shares were offered and assuming the sale of all such shares permitted to be
sold.
<TABLE>
<CAPTION>
SHARES SHARES TO BE SHARES
BENEFICIALLY OWNED SOLD IN THE BENEFICIALLY OWNED
SELLING STOCKHOLDERS(1) PRIOR TO OFFERING OFFERING AFTER THE OFFERING(2)
<S> <C> <C> <C>
John W. Stossel 122,746 122,746 0
2369 Loma Park Ct 20,607 20,607
San Jose, CA 95124
Narendra M. Bhat 8,563 8,563 0
3730 Arlene Court 1,437 1,437
Fremont, CA 94536
Richard J. Bietz, Jr 10,000 10,000 0
14081 Alta Vista
Saratoga, CA 95070
Geoffrey Stutchman 5,000 5,000 0
16124 Greenwood Lane
Monte Sereno, CA 95030
Vanteon Corporation 171,026 171,026 0
Attn: Robert M. Salisbury
2851 Clover Street
Pittsford, NY 14534
SwiftTouch Corporation 100,000 100,000 0
Robert Miller
1D Carnation Circle
Reading, MA 01867
</TABLE>
--------------------
(1) The selling stockholders each own less than 1% of the outstanding shares of
our common stock.
(2) Assumes the sale of all of the offered shares.
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LEGAL MATTERS
Our legal counsel, General Counsel Associates LLP, 1891 Landings Drive,
Mountain View, California 94043, has rendered an opinion to the effect that the
common stock offered hereby is duly and validly issued, fully paid and
non-assessable. Attorneys in the firm of General Counsel Associates LLP own
approximately 4,900 shares of Puma's common stock.
EXPERTS
The financial statements and financial statement schedule
incorporated in this prospectus by reference to the Annual Report on Form
10-K of Puma Technology, Inc. for the year ended July 31, 2000 and the
audited historical financial statements for the year ended July 31, 2000
included in Puma Technology, Inc.'s Report on Form 8-K dated October 17, 2000
have been so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
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PUMA TECHNOLOGY, INC.
REGISTRATION STATEMENT ON FORM S-3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
Number
-------
Item 14 OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
The following table sets forth costs and expenses of the sale and
distribution of the securities being registered. All amounts except Securities
and Exchange Commission and NASD fees are estimates.
<TABLE>
<S> <C>
Registration fee--Securities and Exchange Commission $ 948.25
NASD fees $ 4,404
Accounting fees $ 15,000
Legal fees and expenses $ 20,000
Miscellaneous $ 5,000
---------
Total $45,352.25
</TABLE>
* Represents expenses relating to the distribution by the selling
stockholders pursuant to the Prospectus prepared in accordance with the
requirements of Form S-3. These expenses will be borne by us on behalf of
the selling stockholders.
Item 15 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Delaware General Corporation Law, we have included
in our certificate of incorporation a provision to eliminate the personal
liability of our directors for monetary damages for breach or alleged breach of
their fiduciary duties as directors, subject to certain exceptions. In addition,
our bylaws provide that we are required to indemnify our officers and directors
under certain circumstances, including the circumstances in which
indemnification would otherwise be discretionary, and we are required to advance
expenses to our officers and directors as incurred in connection with
proceedings against them for which they may be indemnified. We have entered into
indemnification agreements with our officers and directors containing provisions
that are in some respects broader than the specific indemnification provisions
contained in the Delaware General Corporation Law. The indemnification
agreements may require us, among other things, to indemnify such officers and
directors against certain liabilities that may arise by reason of their status
or service as directors or officers (other than liabilities arising from willful
misconduct of a culpable nature), to advance expenses incurred as a result of
any proceeding against them as to which they could be indemnified, and to obtain
directors' and officers' insurance if available on reasonable terms. We believe
that our charter provisions and indemnification agreements are necessary to
attract and retain qualified persons as directors and officers. We understand
that the staff of the Securities and Exchange Commission is of the opinion that
statutory charter and contractual provisions as are described above have no
effect on claims arising under the federal securities law.
II-1
<PAGE>
Item 16 EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
2.1 Interest Purchase Agreement among Puma Technology, Inc., Dry
Creek Software, LLC. and the The Dry Creek Members
2.2 Asset Purchase Agreement by and among Puma Technology,
Inc., dba Pumatech, Inc., Vanteon
Corporation and The Windward Group.
2.3 Product Acquisition Agreement between Puma Technology, Inc.,
dba Pumatech, Inc. and SwiftTouch Corporation
5.1 Opinion of General Counsel Associates LLP
23.1 Consent of Independent Accountants
23.2 Consent of General Counsel Associates LLP (Included in
Exhibit 5.1)
24.1 Power of Attorney (contained on Page II-4)
</TABLE>
Item 17 UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, (ii)
to reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate represent a
fundamental change in the information set forth in the registration
statement, and (iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
registration statement 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.
The undersigned hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities as that time shall be deemed to be the initial
bona fide offering thereof.
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<PAGE>
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 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, 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 it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, PUMA TECHNOLOGY, INC., a corporation organized and existing under
the laws of the State of Delaware, certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Jose, State of
California, on December 1, 2000.
PUMA TECHNOLOGY, INC.
By: /s/ KELLY J. HICKS
Kelly J. Hicks, Vice President of Operations
and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kelly J. Hicks, Karen A. Ammer and Adele
C. Freedman, jointly and severally, as his or her attorneys-in-fact, each with
the power of substitution, for him or her in any and all capacities, to sign any
amendments to this Registration Statement on Form S-3, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his or her substitute or substitutes, may do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on December 1,
2000 in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE
<S> <C>
/s/ Michael M. Clair Chairman of the Board of Directors
-----------------------------------------
MICHAEL M. CLAIR
/s/ Bradley A. Rowe Chief Executive Officer and Director
----------------------------------------- (Principal Executive Officer)
BRADLEY A. ROWE
/s/ Kelly J. Hicks Vice President of Operations and
----------------------------------------- Chief Financial Officer
KELLY J. HICKS (Principal Financial and Accounting Officer)
/s/ M. Bruce Nakao Director
-----------------------------------------
M. BRUCE NAKAO
/s/ Stephen A. Nichol Director
-----------------------------------------
STEPHEN A. NICOL
/s/ Tyrone F. Pike Director
-----------------------------------------
TYRONE F. PIKE
/s/ Gary Rieschel Director
-----------------------------------------
GARY RIESCHEL
</TABLE>
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