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As filed with the Securities and Exchange Commission on August 28, 2000
Registration No. 333-34546
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 2 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DOCENT, INC.
(Exact name of registrant as specified in its charter)
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<C> <S> <C>
Delaware 7372 77-0460705
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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2444 Charleston Road
Mountain View, California 94043
(650) 934-9500
(Address, including zip code and telephone number, including area code,
of registrant's principal executive offices)
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DAVID R. ELLETT
Chairman, President and Chief Executive Officer
Docent, Inc.
2444 Charleston Road
Mountain View, California 94043
(650) 934-9500
(Name, address, including zip code and telephone number, including area code,
of agent for service)
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Copies to:
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Stephen M. Wurzburg, Esq. Kenneth R. Lamb, Esq.
Elisa Lowy, Esq. Stan Sze, Esq.
Pillsbury Madison & Sutro LLP Gibson, Dunn & Crutcher LLP
2550 Hanover Street One Montgomery Street
Palo Alto, CA 94304 Telesis Tower, Suite 2600
(650) 233-4500 San Francisco, CA 94104
(415) 393-8200
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Approximate date of proposed sale to the public: As soon as practicable
after the effective date of this Registration Statement.
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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, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Section 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement of the earlier effective registration statement for the
same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment 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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EXPLANATORY NOTE
This Amendment No. 2 is being filed solely for the purpose of filing
exhibits.
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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 by the Registrant in connection
with the sale of Common Stock being registered. All amounts are estimates
except the registration fee and the NASD filing fee.
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Amount
to be Paid
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SEC Registration Fee............................................. $ 27,324
NASD Filing Fee.................................................. 8,500
Nasdaq National Market Listing Fee............................... 90,000
Printing and Engraving........................................... 800,000
Legal Fees and Expenses.......................................... 675,000
Accounting Fees and Expenses..................................... 600,000
Blue Sky Fees and Expenses....................................... 10,000
Transfer Agent Fees.............................................. 30,000
Miscellaneous.................................................... 65,300
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Total.......................................................... $2,306,124
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* To be filed by amendment.
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended (the "Act"). Article VI.B. of the
Registrant's Amended and Restated Certificate of Incorporation (Exhibit 3.2
hereto) and Article XI of the Registrant's Amended and Restated Bylaws (Exhibit
3.4 hereto) provide for indemnification of the Registrant's directors,
officers, employees and other agents to the extent and under the circumstances
permitted by the Delaware General Corporation Law. The Registrant has also
entered into agreements with its directors and officers that will require the
Registrant, among other things, to indemnify them against certain liabilities
that may arise by reason of their status or service as directors or officers to
the fullest extent not prohibited by law.
The Underwriting Agreement (Exhibit 1.1) provides for indemnification by
ourselves, our underwriters and our directors and officers of the underwriters,
for certain liabilities, including liabilities arising under the Act and
affords certain rights of contribution with respect thereto.
Item 15. Recent Sales of Unregistered Securities
Since June 1997, we have issued and sold the following unregistered
securities:
1. On June 27, 1997, we issued 3,725,000 shares to Pardner and Cynthia Wynn,
the shareholders of Stanford Testing Systems, Inc. upon its merger into the
Company, of which 1,018,550 shares were subsequently repurchased.
2. Between June 1997 and March 2000, we issued and sold an aggregate of
3,345,587 shares of common stock at prices ranging from $0.10 to $1.00 per
share, net of any repurchases
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except as described in 1 above. The recipients of the shares were all
employees, directors and consultants.
3. In June 1997, we sold 5,799,998 shares of Series A convertible preferred
stock to seven investors for an aggregate purchase price of $3,914,998.65.
4. In June 1998, we sold 2,000,000 shares of Series B convertible preferred
stock to four investors for an aggregate purchase price of $2,000,000.
5. In September 1998, we sold 833,333 shares of Series B-1 convertible
preferred stock to four investors for an aggregate purchase price of
$999,999.60.
6. From November 1998 to March 1999, we sold 2,578,032 shares of Series C
convertible preferred stock to four investors for an aggregate purchase price
of $4,795,139.52.
7. From August 1999 to December 1999, we sold 7,180,420 shares of Series D
convertible preferred stock to twelve investors for an aggregate purchase price
of $20,536,001.20.
8. In April 2000, we sold 3,719,477 shares of Series E convertible preferred
stock to twenty-five investors for an aggregate purchase price of
$27,970,467.04.
9. In March 1999, we issued warrants to purchase an aggregate of 119,962
shares of common stock at an exercise price of $0.30 per share. These warrants
expire in November 2001.
10. In March 1998, we issued a warrant to purchase 10,000 shares of Series B
convertible preferred stock at an exercise price of $1.25 per share. This
warrant expires in March 2003.
11. In April 1999, we issued warrants to purchase an aggregate of 228,493
shares of Series C convertible preferred stock at an exercise price of $1.86
per share. These warrants expire in April 2006.
12. In March 1999, we issued a warrant to purchase up to 175,000 shares of
convertible preferred stock at an exercise price of the greater of $1.86 per
share or the highest purchase price per share paid by a purchaser of our
convertible preferred stock in a financing at any time after March 23, 1999. In
December 1999, 100,000 shares of Series D convertible preferred stock were
issued at $2.86 per share upon exercise of the warrant. The remaining 75,000
shares were not issued and the warrant expired at December 31, 1999.
13. In December 1999, we issued a warrant to purchase up to 250,000 shares of
Series D convertible preferred stock at an exercise price of $2.86 per share.
This warrant expires in December 2002.
14. In March and April 2000, we issued warrants to purchase 236,534 shares of
common stock at an exercise price of $10.00 per share. These warrants expire at
various times over the next five years.
15. In March 2000, we issued warrants to purchase an aggregate of 2,446,932
shares of Series E convertible preferred stock at an exercise price of $7.52
per share. These warrants expire at various times over the next three years.
The sales and issuances of the above securities, other than the sales and
issuances in Item 2, were deemed to be exempt from registration under the
Securities Act in reliance on Section 4(2) of the Securities Act, or Regulation
D promulgated thereunder, as transactions by an issuer not involving a public
offering and involving only sophisticated investors or "accredited" investors
as defined under Rule 501 of the Securities Act. The sales and issuances of
securities listed above in Item 2 were deemed exempt by virtue of Rule 701
promulgated under Section 3(b) of the Securities Act, as transactions by an
issuer pursuant to compensatory benefit plans and contracts relating to
compensation made to employees,
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directors and consultants as provided under Rule 701. All of the foregoing
securities are deemed restricted securities for the purposes of the Securities
Act. The recipients of securities in each of these transactions represented
their intention to acquire the securities for investment only and not with 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 relationship
with the Registrant, to information about the Registrant.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
See exhibits listed on the Exhibit Index following the signature page of the
Form S-1, which is incorporated herein by reference.
(b) Financial Statement Schedules
Schedules have been omitted because they are not applicable or not required
or because the information is included elsewhere in the Financial Statements or
the notes thereto.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, as amended, 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 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, as amended, 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.
(3) The Registrant will provide to the underwriters at the closing(s)
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Amendment No. 2 to the Registration Statement on Form S-1 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Mountain View, State of California, on the 28th day of August, 2000.
DOCENT, INC.
/s/ David R. Ellett
By: _________________________________
David R. Ellett,
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
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Signature Title Date
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/s/ David R. Ellett Chairman, President, Chief August 28, 2000
____________________________________ Executive Officer and Director
David R. Ellett (Principal Executive Officer)
/s/ Donald E. Lundgren Vice President and Chief August 28, 2000
____________________________________ Financial Officer (Principal
Donald E. Lundgren Financial and Accounting
Officer)
/s/ David Mandelkern Executive Vice President, Chief August 28, 2000
____________________________________ Technology Officer, Secretary
David Mandelkern and Director
/s/ Kevin G. Hall Director August 28, 2000
____________________________________
Kevin G. Hall
/s/ Jos C. Henkens Director August 28, 2000
____________________________________
Jos C. Henkens
/s/ Pardner Wynn Director August 28, 2000
____________________________________
Pardner Wynn
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EXHIBIT INDEX
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Exhibit Exhibit Description
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1.1* Form of Underwriting Agreement
3.1# Amended and Restated Certificate of Incorporation.
3.2# Amended and Restated Certificate of Incorporation, to be effective
upon completion of this offering.
3.3# Bylaws.
3.4# Amended and Restated Bylaws, to be effective upon completion of this
offering.
4.1* Form of Stock Certificate.
4.2# Amended and Restated Investors' Rights Agreement, dated April 7, 2000.
5.1* Opinion of Pillsbury Madison & Sutro LLP.
10.1# Registrant's 1997 Stock Option Plan.
10.2# Registrant's 2000 Omnibus Equity Incentive Plan.
10.3# Registrant's 2000 Employee Stock Purchase Plan.
10.4* Form of Directors and Officers' Indemnification Agreement, to be
entered into subsequent to the completion of this offering.
10.5# Employment Letter from the Registrant to David Ellett dated February
25, 1998.
10.6# Employment Letter from the Registrant to Richard Dellinger dated
November 4, 1997.
10.7# Employment Letter from the Registrant to Kathleen Gogan dated
September 22, 1998.
10.8# Officer's Change in Control Agreement dated October 14, 1999 by and
between the Registrant and David Mandelkern.
10.9# Officer's Change in Control Agreement dated October 14, 1999 by and
between the Registrant and Richard Dellinger.
10.10+ Integrator Reseller Agreement dated January 7, 2000 by and between the
Registrant and Hewlett-Packard Company, as amended July 31, 2000.
10.11+ Master Consulting Services dated April 1, 2000 between the registrant
and Andersen Consulting, LLP.
10.12+ Amended and Restated ASP Development and Hosting Agreement dated March
31, 2000 between the Registrant and The Richardson Company.
10.13+ Master Alliance Agreement dated March 31, 2000 between the registrant
and Andersen Consulting, LLP.
10.14+ Master License and Services Agreement dated June 26, 2000 between the
registrant and Qwest Communications.
10.15+ Professional Services Agreement dated June 27, 2000 between the
Registrant and Qwest Communications.
10.16+ License and Co-Marketing Agreement dated May 26, 2000 between the
registrant (Netherlands B.V.) and FT Knowledge, Ltd.
10.17+ Marketing Agreement dated March 31, 2000 between the registrant and
Harvard Business School Publishing.
10.18+ Professional Services Agreement dated March 25, 1999 between the
Registrant and Impiric (formerly Wunderman Cato Johnson).
10.19+ Master License Agreement dated March 25, 1999 between the Registrant
and Impiric (formerly Wunderman Cato Johnson).
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Exhibit Exhibit Description
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10.20+ License Agreement for commercial use of Docent Software dated December
30, 1998 between the Registrant and Veritas Software, Inc.
10.21*+ Term Sheet dated August 7, 2000 between the Registrant and SmartForce.
10.22! Lease Agreement dated September 22, 1999 by and between the Registrant
and Limar Realty Corp. #17.
10.23! Lease Agreement dated February 1, 2000 by and between the Registrant
and Connecticut General Life Insurance Company.
10.24! Quickstart Loan and Security Agreement dated August 1, 1997 by and
between the Registrant and Silicon Valley Bank as amended on October
31, 1997.
10.25! Subordinated Loan and Security Agreement dated April 23, 1999 by and
between the Registrant and Comdisco, Inc.
10.26! Promissory Note from David Ellett to the Registrant.
10.27! Promissory Note from David Mandelkern to the Registrant.
10.28! Stock Pledge Agreements dated July 9, 1997 by and between the
Registrant and David Mandelkern and dated September 30, 1998 by and
between the Registrant and David Ellett.
10.29! Warrant to Purchase Shares of Series C Preferred Stock dated April 23,
1999.
10.30! Warrant to Purchase Shares of Series D Preferred Stock dated December
1999.
10.31* Warrant to Purchase Shares of Series E Preferred Stock dated March 31,
2000.
10.32! Severance Agreement dated June 27, 1997 by and among Pardner Wynn,
David Mandelkern, Norwest Equity Partners, V and Advanced Technology
Ventures IV.
23.1* Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1# Power of Attorney. Reference is made to Page II-4.
27.1* Financial Data Schedule.
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* To be filed by amendment.
+ Confidential Treatment Requested.
# Previously Filed.
! Previously filed under a different Exhibit Number.
