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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1999
REGISTRATION NO. 333-87267
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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
POET HOLDINGS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 7372 94-3221778
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
999 BAKER WAY, SUITE 100
SAN MATEO, CALIFORNIA 94404
(650) 286-4640
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DIRK BARTELS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POET HOLDINGS, INC.
999 BAKER WAY, SUITE 100
SAN MATEO, CALIFORNIA 94404
(650) 286-4640
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
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BRUCE M. MCNAMARA, ESQ. TOBIAS MULLER-DEKU WALTER A. LOONEY, ESQ.
WILSON SONSINI GOODRICH DR. CHRISTOPH L. GLESKE SIMPSON THACHER & BARTLETT
& ROSATI BRUCKHAUS WESTRICK 21ST FLOOR
PROFESSIONAL CORPORATION HELLER LOBER 99 BISHOPSGATE
650 PAGE MILL ROAD TAUNUSANLAGE 11 LONDON EC2M 3YH
PALO ALTO, CALIFORNIA 60329 FRANKFURT AM MAIN ENGLAND
94304-1050 GERMANY (44) 207 422 4000
(650) 493-9300 (49) 69 27 30 80
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED PRICE REGISTRATION FEE(1)
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Common Stock ($0.001 par value per share)................... $65,550,000 $18,223
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</TABLE>
(1) Registration fee previously paid. Estimated solely for the purpose
determining the registration fee pursuant to Rule 457(o) promulgated under
the Securities Act.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE 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 following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable POET Holdings in connection with
the sale of Common Stock being registered. All amounts are estimates except the
SEC registration fee.
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SEC registration fee........................................ $ 18,223
Printing and engraving costs................................ 150,000
Legal fees and expenses..................................... 400,000
Accounting fees and expenses................................ 300,000
Neuer Markt Listing Fee.....................................
Blue Sky fees and expenses.................................. 5,000
Transfer Agent and Registrar fees........................... 10,000
Reimbursed expenses of underwriters.........................
Miscellaneous expenses...................................... 315,000
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Total $1,300,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article Ninth of POET Holdings' Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Article VI of POET Holdings' Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of POET Holdings to the
fullest extent permissible under Delaware law.
POET Holdings intends to enter into indemnification agreements with its
directors and executive officers, in addition to the indemnification provided
for in POET Holdings' Bylaws, and intends to enter into indemnification
agreements with any new directors and executive officers in the future.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, POET Holdings has issued unregistered
securities to a limited number of persons as described below.
1. On March 31, 1995, we issued 923,206 shares and 487,967 shares of
Series B Common Stock to Dirk Bartels and Jochen Witte, respectively, and
816,793 shares and 408,397 shares of Series A Preferred Stock to European
Technologies Holding and Compagnie Auxiliare Telecommunication (now
INNOVACOM), respectively, in exchange for all of the outstanding capital
stock of POET Software GmbH.
2. On April 7, 1995, we sold 1,686,049 shares of Series B Preferred
Stock for $2.15 per share to the following investors for an aggregate
purchase price of $3,625,005.35: Atlas Venture Europe Fund B.V., Lawrence
Owen Brown Family Trust (later transferred to Lawrence Owen Brown Family
LLC), El Dorado C&L Fund, L.P., El Dorado Ventures III, L.P., El Dorado
Technology IV, L.P., European Technologies Holding N.V., GC&H Investments,
Compagnie Auxiliare Telecommunications S.A., O'Brien Family Trust U/T/D
dated July 1, 1992, Sigma Associates III, Sigma Partners III, Sigma
Investors III and WS Investment Company 95A.
3. From inception through June 30, 1999, we granted stock options to
purchase 1,228,550 shares of our common stock at exercise prices ranging
from $0.22 to
II-1
<PAGE> 3
$11.50 per share $5.00 per share to employees, consultants, directors and
other service providers pursuant to our 1995 Stock Plan.
4. From inception through July 14, 1999, we issued and sold an
aggregate of 243,959 shares of our Series A Common Stock to employees,
consultants, directors and other service providers for an aggregate
purchase price of approximately $66,157.85 pursuant to exercises of options
granted under our 1995 Stock Plan.
5. On June 19, 1995, in connection with an equipment lease, we issued
a warrant to Lighthouse Capital Partners, L.P. to purchase 7,291 shares of
our Series B Preferred Stock at an exercise price of $2.15 per share.
6. On July 25, 1996, in connection with a loan, we issued a warrant to
Venture Lending, a division of Cupertino National Bank & Trust, to purchase
2,185 shares of Series C Preferred Stock at $5.72 per share.
7. On September 13, 1996, in connection with a loan, we issued a
warrant to Venture Lending, a division of Cupertino National Bank & Trust,
to purchase 4,370 shares of Series C Preferred Stock at $5.72 per share.
8. On November 8, 1996, we sold 1,143,886 shares of Series C Preferred
Stock for $5.72 per share to the following investors for an aggregate
purchase price of $6,543,027.92: Atlas Venture Europe Fund B.V., Lawrence
Owen Brown Family Trust, El Dorado C&L Fund, L.P., El Dorado Ventures III,
L.P., El Dorado Technology IV, L.P., European Technologies Holding N.V.,
GC&H Investments, Innovacom, Sigma Associates III, Sigma Partners III,
Sigma Investors III, WS Investment Company 96B and Novell, Inc.
9. On September 23, 1998, in connection with a note and warrant bridge
financing, we issued warrants to purchase an aggregate of 49,710 shares of
our Series D Preferred Stock at an exercise price of $7.04 per share to the
following investors: Atlas Venture Europe Fund B.V., the Lawrence Owen
Brown Family Trust, El Dorado C&L Fund, L.P., El Dorado Ventures III, L.P.,
El Dorado Technology IV, L.P., European Technologies Holding N.V.,
Innovacom, Sigma Associates III, Sigma Partners III and Sigma Investors
III.
10. On December 23, 1998, December 31, 1998 and April 23, 1999, we
sold an aggregate of 926,832 shares of Series D Preferred Stock for $7.04
per share to the following investors for an aggregate purchase price of
$6,524,897.28: Atlas Venture Europe Fund B.V., Lawrence Owen Brown Family
Trust, El Dorado C&L Fund, L.P., El Dorado Ventures III, L.P., El Dorado
Technology IV, L.P., European Technologies Holding N.V., Innovacom, Sigma
Associates III, Sigma Partners III, Sigma Investors III, Private Equity
Bridge Invest Ltd., Technologie Beteiligungs Gesellschaft, Innovationsfonds
Schleswig-Holstein & Hamburg GmbH and TH Fonds VC GmbH.
11. On January 20, 1999, in connection with a loan for $3,900,000 from
Technologie-Beteiligungsgesellschaft mbH der Deutschen Ausgleichsbank, we
issued a convertible subordinated promissory note, convertible into shares
of our Series A Common Stock.
12. On February 16, 1999, we issued a warrant to purchase up to 8,423
shares of our Series A Common Stock at an exercise price of $7.04 per share
to a technology search firm as in consideration for recruiting services.
13. On April 30, 1999, we issued a warrant to purchase up to 35,000
shares of our Series A Common Stock at an exercise price of $7.04 per share
to Ariba Technologies.
Except as indicated above, none of the foregoing transactions involved any
underwriters, underwriting discounts or commissions, or any public offering, and
POET Holdings believes that each transaction was exempt from the registration
requirements of the Securities Act by virtue of Section 4(2) thereof, Regulation
D promulgated thereunder or Rule 701 pursuant to compensatory benefit plans and
contracts relating to compensation as provided under such Rule 701. The
recipients in 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, through their relationships with POET Holdings and the
Predecessor, to information about POET Holdings.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1* Form of Underwriting Agreement.
3.1* Amended and Restated Certificate of Incorporation of the
Registrant.
3.2* Amended and Restated Bylaws of the Registrant.
4.1* Form of Registrant's Common Stock certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Change of Control Severance Agreement by and between the
Registrant and Jerry Wong, dated November 14, 1995.
10.2** Change of Control Severance Agreement by and between the
Registrant and Michael Hogan, dated April 2, 1997.
10.3** Change of Control Severance Agreement by and between the
Registrant and Carol Curry, dated August 1, 1997.
10.4.1** Employment Contract between POET Software GmbH and Jorg
Tewes, dated September 29, 1997.
10.4.2** English Summary of Exhibit 10.4.1.
10.5.1** Employment Contract between POET Software GmbH and Jochen
Witte, dated May 19, 1993.
10.5.2** English Summary of Exhibit 10.5.1.
10.6* Amended and Restated 1995 Stock Plan.
10.7* 1999 Director Option Plan.
10.8* 1999 Employee Stock Purchase Plan.
10.9* Form of Indemnification Agreement between the Registrant and
each of its directors and executive officers.
10.10** Second Amended and Restated Stockholder Rights Agreement,
dated December 23, 1998.
10.11** Warrant to purchase shares of Series A Common Stock of the
Registrant issued to Mark L. Gideon and Karen A Gideon,
Trustees U/A dated October 27, 1997 FBO Mark L. Gideon and
Karen A Gideon.
10.12** Warrant to purchase shares of Series A Common Stock of the
Registrant issued to Ariba, Inc., dated April 30, 1999.
10.13** Warrant to purchase shares of Series C Preferred Stock of
the Registrant issued to Venture Lending, a Division of
Cupertino National Bank & Trust, dated September 13, 1996.
10.14** Warrant to purchase shares of Series C Preferred Stock of
the Registrant issued to Venture Lending, a Division of
Cupertino National Bank & Trust, dated July 25, 1996.
10.15** Warrant to purchase shares of Series B Preferred Stock of
the Registrant issued to Lighthouse Capital Partners, L.P.,
dated June 19, 1995.
10.16** Form of warrant to purchase shares of Series D Preferred
Stock of the Registrant.
10.17** Lease Agreement, dated November 23, 1998, between Spieker
Properties, L.P., and the Registrant's wholly owned
subsidiary POET Software Corporation.
10.18.1* Office Lease Agreement between the Registrant's wholly owned
subsidiary POET Software GmbH and GBR
Petersen/Schroeder/Schmiel-Vemieter for office space in
Hamburg, Germany, dated May 29, 1997.
10.18.2* English Summary of Exhibit 10.18.1.
10.19*+ Agreement between POET Software Corporation and Ariba, Inc.,
dated April 30, 1999.
22.1** Subsidiaries of Registrant.
23.1 Consent of Deloitte & Touche LLP, independent auditors.
23.2* Consent of Counsel. Reference is made to Exhibit 5.1.
24.1** Power of Attorney (see page II-5).
27.1** Financial Data Schedule.
</TABLE>
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* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested as to certain portions of this exhibit.
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(b) FINANCIAL STATEMENT SCHEDULES
Schedule II -- Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS
We hereby undertake to provide to the underwriters at the closing specified
in the Underwriting Agreement certificates in such denominations and registered
in such names as required by the underwriters to permit prompt delivery to each
purchaser.
Insofar as indemnification by us for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons of us pursuant to the provisions referenced in Item 14 of this
Registration Statement or otherwise, we have been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by us of expenses incurred or paid by a director, officer, or
controlling person of POET Holdings in the successful defense of any action,
suit or proceeding) is asserted by a director, officer or controlling person in
connection with the securities being registered hereunder, we 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.
We hereby undertake that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of Prospectus filed by us pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF SAN MATEO,
STATE OF CALIFORNIA, ON THE 30TH DAY OF SEPTEMBER, 1999.
POET HOLDINGS, INC.
By: /s/ DIRK BARTELS
------------------------------------
Dirk Bartels
President and Chief Executive
Officer
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:
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SIGNATURE TITLE DATE
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/s/ DIRK BARTELS President and Chief Executive September 30, 1999
- --------------------------------------------- Officer and Chairman of the
Dirk Bartels Board
(Principal Executive Officer)
* Chief Financial Officer September 30, 1999
- --------------------------------------------- (Principal Financial Officer)
Jochen Witte
* (Principal Accounting Officer) September 30, 1999
- ---------------------------------------------
Jerry Wong
* Director September 30, 1999
- ---------------------------------------------
Shanda Bahles
* Director September 30, 1999
- ---------------------------------------------
Lawrence Owen Brown
* Director September 30, 1999
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J. Burgess Jamieson
* Director September 30, 1999
- ---------------------------------------------
Gert Kohler
* Director September 30, 1999
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Jerome Lecoeur
*By: /s/ DIRK BARTELS Attorney-in-fact September 30, 1999
--------------------------------------
Dirk Bartels
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INDEPENDENT AUDITORS' REPORT ON SCHEDULE
To the Board of Directors and Stockholders of Poet Holdings, Inc.:
We have audited the consolidated financial statements of Poet Holdings,
Inc. and its subsidiaries (the Company) as of December 31, 1996, 1997, and 1998,
and for each of the three years in the period ended December 31, 1998, and have
issued our report thereon dated September 8, 1999 (September 13, 1999 as to Note
11) (included elsewhere in this Registration Statement). Our audits also
included the consolidated financial statement schedule listed in Item 16(b) of
this Registration Statement. The consolidated financial statement schedule is
the responsibility of the Company's management. Our responsibility is to express
an opinion based on our audits. In our opinion, such consolidated financial
statement schedule, when considered in relation to the basic consolidated
financial statements taken as a whole, presents fairly in all material respects
the information set forth therein.
Deloitte & Touche LLP
San Jose, California
September 8, 1999
S-1
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1* Form of Underwriting Agreement.
3.1* Amended and Restated Certificate of Incorporation of the
Registrant.
3.2* Amended and Restated Bylaws of the Registrant.
4.1* Form of Registrant's Common Stock certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Change of Control Severance Agreement by and between the
Registrant and Jerry Wong, dated November 14, 1995.
10.2** Change of Control Severance Agreement by and between the
Registrant and Michael Hogan, dated April 2, 1997.
10.3** Change of Control Severance Agreement by and between the
Registrant and Carol Curry, dated August 1, 1997.
10.4.1** Employment Contract between POET Software GmbH and Jorg
Tewes, dated September 29, 1997.
10.4.2** English Summary of Exhibit 10.4.1.
10.5.1** Employment Contract between POET Software GmbH and Jochen
Witte, dated May 19, 1993.
10.5.2** English Summary of Exhibit 10.5.1.
10.6* Amended and Restated 1995 Stock Plan.
10.7* 1999 Director Option Plan.
10.8* 1999 Employee Stock Purchase Plan.
10.9* Form of Indemnification Agreement between the Registrant and
each of its directors and executive officers.
10.10** Second Amended and Restated Stockholder Rights Agreement,
dated December 23, 1998.
10.11** Warrant to purchase shares of Series A Common Stock of the
Registrant issued to Mark L. Gideon and Karen A Gideon,
Trustees U/A dated October 27, 1997 FBO Mark L. Gideon and
Karen A Gideon.
10.12** Warrant to purchase shares of Series A Common Stock of the
Registrant issued to Ariba, Inc., dated April 30, 1999.
10.13** Warrant to purchase shares of Series C Preferred Stock of
the Registrant issued to Venture Lending, a Division of
Cupertino National Bank & Trust, dated September 13, 1996.
10.14** Warrant to purchase shares of Series C Preferred Stock of
the Registrant issued to Venture Lending, a Division of
Cupertino National Bank & Trust, dated July 25, 1996.
10.15** Warrant to purchase shares of Series B Preferred Stock of
the Registrant issued to Lighthouse Capital Partners, L.P.,
dated June 19, 1995.
10.16** Form of warrant to purchase shares of Series D Preferred
Stock of the Registrant.
10.17** Lease Agreement, dated November 23, 1998, between Spieker
Properties, L.P., and the Registrant's wholly owned
subsidiary POET Software Corporation.
10.18.1* Office Lease Agreement between the Registrant's wholly owned
subsidiary POET Software GmbH and GBR
Petersen/Schroeder/Schmiel-Vemieter for office space in
Hamburg, Germany, dated May 29, 1997.
10.18.2* English Summary of Exhibit 10.18.1.
10.19*+ Agreement between POET Software Corporation and Ariba, Inc.,
dated April 30, 1999.
22.1** Subsidiaries of Registrant.
23.1 Consent of Deloitte & Touche LLP, independent auditors.
23.2* Consent of Counsel. Reference is made to Exhibit 5.1.
24.1** Power of Attorney (see page II-5).
27.1** Financial Data Schedule.
</TABLE>
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* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested as to certain portions of this exhibit.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the use in this Registration Statement of Poet Holdings, Inc.
on Form S-1 of our report dated September 8, 1999 (September 13, 1999 as to Note
11) appearing in the Prospectus, which is part of the Registration Statement and
of our report dated September 8, 1999 relating to the financial statement
schedule appearing elsewhere in this Registration Statement. We also consent to
the reference to us under the headings "Selected Consolidated Financial Data"
and "Experts" in such Prospectus.
Deloitte & Touche LLP
San Jose, California
September 15, 1999
