AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST_____, 2000
REGISTRATION STATEMENT NO. 333-
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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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ADATOM.COM, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 43-1771999
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
920 HILLVIEW COURT RICHARD S. BARTON
SUITE 160 CHAIRMAN
MILPITAS, CA 95035 ADATOM.COM, INC.
(408) 935-7979 920 HILLVIEW COURT
(Address, including zip code, SUITE 160
and telephone number, including area MILPITAS, CA 95035
code, of registrant's principal (408) 935-7979
executive offices) (Name, address, including zip code,
and telephone number, including area
code, of agent for service)
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WITH COPIES TO:
Henry D. Evans, Esq.
McCutchen, Doyle, Brown & Enersen, LLP
Three Embarcadero Center
San Francisco, California 94111
(415) 393-2503
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: [X] 333-40714
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: [ ]
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
contained herein is a combined prospectus that also relates to 1,198,160 common
shares registered on Registration No. 333-40714 that have not yet been offered
for sale.
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED OFFERING PRICE(1) OFFERING PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value ...... 676,000 shares(2) $1.14 $770,640 $203.45
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</TABLE>
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(1) Estimated solely for purposes of calculating the registration fee,
based upon the average of the high and low sales prices of the
common stock on the Nasdaq Small Cap Market on August 17, 2000,
pursuant to Rule 457(c) under the Securities Act.
(2) Includes 676,000 shares issuable upon conversion of the
registrant's Series A Convertible Preferred Stock, assuming a
conversion price of $1.14 per common share. A registration fee of
$1,017.42 was paid with respect to the earlier registration of
2,502,500 common shares pursuant to Registration No. 333-40714, of
which $487.13 represented the proportionate amount of the fee
associated with 1,198,160 common shares which have not yet been
sold.
THIS REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
EXPLANATORY NOTE
This Registration Statement is being filed pursuant to Rule 462(b) of
the Securities Act of 1933, as amended, to register an additional 676,000 shares
of common stock, comprising the same class of securities covered by an earlier
Registration Statement (File No. 333-40714) filed by the Registrant for the same
offering and declared effective by the Securities and Exchange Commission on
August 14, 2000.
INCORPORATION BY REFERENCE
Unless otherwise inconsistent with this Registration Statement, the
information contained in Registration Statement No. 333-40714 is hereby
incorporated in this Registration Statement by reference.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the distribution of the
securities being registered, all of which are to be paid by the Registrant, are
as follows:
Securities and Exchange Commission Registration Fee ...............$1,017
Printing and Engraving Expenses ...................................10,000
Nasdaq Qualification Fee ..........................................17,500
Legal Fees and Expenses ...........................................50,000
Accounting Fees and Expenses ...................................... 7,500
Miscellaneous Fees and Expenses ...................................13,983
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Total ................................................$100,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("GCL") grants
corporations the power to indemnify their directors, officers, employees and
agents in accordance with the provisions thereof. Article Sixth of the
Registrant's Amended and Restated Certificate of Incorporation
("Certificate")and Article V of the Registrant's By-laws provide for
indemnification of Registrant's directors, officers, agents and employees to the
full extent permissible under Section 145 of the GCL. Section 102(b)(7) of the
GCL authorizes a corporation to eliminate the liability of directors for breach
of fiduciary duty in certain cases. Article Eighth of the Certificate eliminates
such liability to the full extent permitted by the GCL.
Registrant has entered into indemnification agreements with each of
its directors and executive officers. Each such agreement provides that
Registrant will indemnify the indemnitee against expenses, including reasonable
attorneys' fees, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any civil or criminal
action or administrative proceeding arising out of the performance of his duties
as an officer, director, employee or agent of Registrant. Such indemnification
will be available if the acts of the indemnitee were in good faith, if the
indemnitee acted in a manner he reasonably believes to be in or not opposed to
the best interest of Registrant and, with respect to any criminal proceeding,
the indemnitee had no reasonable cause to believe his conduct was unlawful.
The Registration Rights Agreements entered into between Registrant and
certain selling securityholders, as well as the warrants held by the selling
securityholders contain indemnification provisions.
Registrant maintains directors' and officers' liability insurance
coverage with an aggregate policy limit of $15 million for each policy year.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
An Exhibit Index has been attached as part of this Registration
Statement and is incorporated herein by reference.
<PAGE>
(b) Financial Statement Schedules
Schedules are omitted because they are either not required, are not
applicable or because equivalent information has been included in the financial
statements, the notes thereto or elsewhere herein.
ITEM 17. UNDERTAKINGS
a) 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:
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(b) 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;
(c) 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;
provided, however, that paragraphs (1)(a) and (1)(b) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such 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.
b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall by 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.
c) 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 provisions described under "Item 15, Indemnification
of Directors and Officers" above, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment to the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
<PAGE>
d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on a 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 Milpitas, State of California, on the 22nd day
of August, 2000.
ADATOM.COM, INC.
By:
/s/ MICHAEL M. WHEELER*
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Name: Michael M. Wheeler
Title: Controller and Secretary
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint RICHARD S. BARTON and MICHAEL
M. WHEELER, and each of them, with full power to act without the other, his or
her true and lawful attorney-in-fact and agent for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement including without limitation any registration statement
for the same offering that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same, as fully, for all intents and purposes, as he or she could
or might do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ RICHARD S. BARTON*
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Richard S. Barton Chairman of the Board, Chief August 22, 2000
Executive Officer, President,
Chief Financial Officer
and Director
(principal executive and
financial officer)
/s/ MICHAEL M. WHEELER*
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Michael M. Wheeler Controller and Secretary August 22, 2000
(principal accounting Officer)
/s/ SRIDHAR JAGANNATHAN*
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Sridhar Jagannathan Director August 22, 2000
/s/ RALPH K. FRASIER*
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Ralph K. Frasier Director August 22, 2000
<PAGE>
/s/ VICTOR W. NEE*
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Victor W. Nee Director August 22, 2000
*/s/ MICHAEL M. WHEELER
----------------------- Individually and as August 22, 2000
Michael M. Wheeler Attorney-in-Fact
<PAGE>
Exhibit Index
Exhibit
Number Description
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4.15 Warrant issuance Agreement between the Registrant and Victor W. Nee,
dated February 25, 2000 (1)
4.16 Revised Form of warrant issued to Dr. Victor W. Nee dated May 25,
2000(2)
4.17 Warrant to purchase shares of Common Stock issued to Richard Seifert
dated as of April 4, 2000 (3)
4.19 Certificate of Designations relating to Series A Convertible
Preferred Stock (4)
4.20 Securities Purchase Agreement relating to Series A Convertible
Preferred Stock, dated June 22, 2000 (4)
4.21 Registration Rights Agreement relating to Series A Convertible
Preferred Stock, dated June 22, 2000 (4)
4.22 Form of A Warrant issued to purchasers of Series A Convertible
Preferred Stock and to Astor Capital, Inc. on June 22, 2000 (4)
4.22 Form of B Warrant issued to purchasers of Series A Convertible
Preferred Stock and to Astor Capital, Inc. on June 22, 2000 (4)
5 Opinion of McCutchen, Doyle, Brown & Enersen, LLP
23.1 Consent of Richard A. Eisner LLP
23.2 Consent of Ireland San Filippo, LLP, Independent Public Auditors of
Adatom.com, Inc.
23.3 Consent of McCutchen, Doyle, Brown & Enersen, LLP (included in
Exhibit 5)
24 Power of Attorney (filed as part of signature page to Registration
Statement
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(1) Incorporated by reference to exhibit of same number filed with
Registrant's Annual Report on Form 10-KSB for the year ended December
31, 1999.
(2) Incorporated by reference to Exhibit 4.26 of the Registrant's Quarterly
Report on Form 10-QSB for the Quarter Ended June 30, 2000.
(3) Incorporated by reference to exhibit of same number filed with Regis-
trant's Quarterly Report on Form 10-QSB for the quarter ended March 31,
2000.
(4) Incorporated by reference to exhibit of same number filed with Regis-
trant's Current Report on Form 8-K dated May 19, 2000.
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