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As filed with the Securities and Exchange Commission on May 6, 1999
Registration No. 333-72935
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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LATITUDE COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 5045 94-3177392
(State or Other (Primary Standard Industrial (I.R.S. Employer
Jurisdiction of Classification Code Number) Identification Number)
Incorporation or
Organization)
2121 Tasman Drive
Santa Clara, CA 95054
(408) 988-7200
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
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Emil C.W. Wang
President and Chief Executive Officer
Latitude Communications, Inc.
2121 Tasman Drive
Santa Clara, CA 95054
(408) 988-7200
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copies to:
Mark A. Medearis Jeffrey D. Saper
Edward Y. Kim Selim Day
Anita Vasudevan Ava M. Hahn
VENTURE LAW GROUP WILSON SONSINI GOODRICH & ROSATI
A Professional Corporation Professional Corporation
2800 Sand Hill Road 650 Page Mill Road
Menlo Park, CA 94025 Palo Alto, CA 94304
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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, 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 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. [_]
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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 this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Explanatory Note
This Amendment No. 5 is being filed solely to file a new Exhibit 23.1
Consent of Independent Accountants.
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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 Latitude in connection with
the sale of common stock being registered. All amounts are estimates except the
SEC registration fee and the NASD filing fee and the Nasdaq National Market
listing fee.
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<CAPTION>
Amount
to be Paid
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<S> <C>
SEC registration fee................................................ $ 11,510
NASD filing fee..................................................... 4,640
Nasdaq National Market listing fee.................................. 95,000
Printing and engraving expenses..................................... 200,000
Legal fees and expenses............................................. 350,000
Accounting fees and expenses........................................ 275,000
Blue Sky qualification fees and expenses............................ 2,000
Transfer Agent and Registrar fees................................... 15,000
Miscellaneous fees and expenses..................................... 46,850
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Total............................................................. $1,000,000
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Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Act"). The
Registrant's Amended and Restated Certificate of Incorporation provides for
indemnification of its directors and officers to the maximum extent permitted
by the Delaware General Corporation Law and the Registrant's Bylaws provides
for indemnification of its directors, officers, employees and other agents to
the maximum extent permitted by the Delaware General Corporation Law. In
addition, the Registrant has entered into Indemnification Agreements with its
directors and officers containing provisions which are in some respects broader
than the specific indemnification provisions contained in the Delaware General
Corporation Law. The indemnification agreements may require the Company, among
other things, to indemnify its directors against certain liabilities that may
arise by reason of their status or service as directors (other than liabilities
arising from willful misconduct of culpable nature), to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified, and to obtain directors' insurance if available on reasonable
terms. Reference is also made to Section 7 of the Underwriting Agreement
contained in Exhibit 1.1 hereto, indemnifying officers and directors of the
Company against certain liabilities.
Item 15. Recent Sales of Unregistered Securities
(a) Since January 1, 1996, the Registrant has issued and sold (without
payment of any selling commission to any person) the following unregistered
securities:
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(1) In April 1999, the Registrant completed a three-for-two stock
split of its outstanding common stock in which every two outstanding
shares of common stock were split into three shares of common stock.
(2) In March 1996, the Registrant issued and sold shares of Series C
Preferred Stock convertible into an aggregate of 3,043,500 shares of
common stock to a total of 11 investors for an aggregate purchase price
of $8,116,000.
(3) As of December 31, 1998, 1,968,636 shares of common stock had
been issued upon exercise of options or pursuant to restricted stock
purchase agreements and 1,352,496 shares of common stock were issuable
upon exercise of outstanding options under the Registrant's 1993 Stock
Plan.
(b) There were no underwritten offerings employed in connection with any of
the transactions set forth in Item 15(a).
The issuance described in Item 15(a)(1) was or will be exempt from
registration under Section 2(3) of the Securities Act on the basis that such
transaction did not involve a "sale" of securities. The issuances described in
Items 15(a)(2) were deemed to be exempt from registration under the Securities
Act in reliance upon Section 4(2) thereof as transactions by an issuer not
involving any public offering. The issuances described in Items 15(a)(3) were
deemed to be exempt from registration under the Securities Act in reliance upon
Rule 701 promulgated thereunder in that they were offered and sold either
pursuant to written compensatory benefit plans or pursuant to a written
contract relating to compensation, as provided by Rule 701. In addition, such
issuances were deemed to be exempt from registration under Section 4(2) of the
Securities Act as transactions by an issuer not involving any public offering.
The recipients of securities in each such transaction represented their
intentions 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
where affixed to the securities issued in such transactions. All recipients had
adequate access, through their relationships with the Company, to information
about the Registrant.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
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1.1* Form of Underwriting Agreement.
3.1* Certificate of Incorporation of the Registrant.
3.2* Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed and effective upon completion of this offering.
3.3* Bylaws of the Registrant.
4.1* Form of the Registrant's common stock certificate.
5.1* Opinion of Venture Law Group, a Professional Corporation.
10.1* Form of Indemnification Agreement.
10.2* 1993 Stock Plan, as amended, and forms of stock option agreement and
restricted stock purchase agreement.
10.3* 1999 Stock Plan and forms of stock option agreement and restricted stock
purchase agreement.
10.4* 1999 Employee Stock Purchase Plan and form of subscription agreement.
10.5* 1999 Directors' Stock Option Plan and form of stock option agreement.
10.6* Warrant To Purchase Series B Preferred Stock.
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<TABLE>
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10.7* Amended and Restated Registration Rights Agreement dated March 26,
1996.
10.8* Lease Agreement dated July 31, 1995 between the Registrant and the
Arrillaga Family Trust and Richard T. Peery Separate Property Trust for
offices at 2121 Tasman Drive, Santa Clara, CA and form of amendment
thereto.
10.9* Senior Loan and Security Agreement dated September 15, 1994 between the
Registrant and Phoenix Leasing Incorporated and amendments thereto.
10.10* Master Equipment Lease dated July 2, 1998 between the Registrant and
Norstan Financial Services, Inc.
10.11* 1999 Executive Incentive Plan between the Registrant and certain
executive officers of the Registrant.
10.12* 1999 Executive Bonus Program.
21* Subsidiaries.
23.1 Consent of Independent Accountants.
23.2* Consent of Counsel (included in Exhibit 5.1).
24.1* Power of Attorney.
27.1* Financial Data Schedule.
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*Previously filed.
(b) Financial Statement Schedules
Item 17. Undertakings
The undersigned Registrant hereby undertakes 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 for liabilities arising under the Securities Act
of 1933 (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 Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in the 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 a part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the 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 this 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, the undersigned
Registrant has duly caused this Amendment to Registration Statement on Form S-1
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Santa Clara, State of California, on May 6, 1999.
Latitude Communications, Inc.
/s/ Emil C.W. Wang
By: _________________________________
Emil C.W. Wang,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement on Form S-1 has been signed by the following persons
in the capacities and on the dates indicated:
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Emil C.W. Wang President, Chief Executive May 6, 1999
______________________________________ Officer and Director
(Emil C.W. Wang) (Principal Executive
Officer)
/s/ Rick M. McConnell Vice President of Finance May 6, 1999
______________________________________ and Administration and
(Rick M. McConnell) Chief Financial Officer
(Principal Financial and
Accounting Officer)
* Director May 6, 1999
______________________________________
(Thomas H. Bredt)
* Director May 6, 1999
______________________________________
(Robert J. Finocchio, Jr.)
* Director May 6, 1999
______________________________________
(F. Gibson Myers, Jr.)
* Director May 6, 1999
______________________________________
(James L. Patterson)
/s/ Rick M. McConnell
*By: _________________________________
Rick M. McConnell
Attorney in fact
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EXHIBIT INDEX
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1.1* Form of Underwriting Agreement.
3.1* Certificate of Incorporation of the Registrant.
3.2* Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed and effective upon completion of this offering.
3.3* Bylaws of the Registrant.
4.1* Form of the Registrant's common stock certificate.
5.1* Opinion of Venture Law Group, a Professional Corporation.
10.1* Form of Indemnification Agreement.
10.2* 1993 Stock Plan, as amended, and forms of stock option agreement and
restricted stock purchase agreement.
10.3* 1999 Stock Plan and forms of stock option agreement and restricted
stock purchase agreement.
10.4* 1999 Employee Stock Purchase Plan and form of subscription agreement.
10.5* 1999 Directors' Stock Option Plan and form of stock option agreement.
10.6* Warrant To Purchase Series B Preferred Stock.
10.7* Amended and Restated Registration Rights Agreement dated March 26,
1996.
10.8* Lease Agreement dated July 31, 1995 between the Registrant and the
Arrillaga Family Trust and Richard T. Peery Separate Property Trust for
offices at 2121 Tasman Drive, Santa Clara, CA and Form of amendment
thereto.
10.9* Senior Loan and Security Agreement dated September 15, 1994 between the
Registrant and Phoenix Leasing Incorporated and amendments thereto.
10.10* Master Equipment Lease dated July 2, 1998 between the Registrant and
Norstan Financial Services, Inc.
10.11* 1999 Executive Incentive Plan between the Registrant and certain
executive officers of the Registrant.
10.12* 1999 Executive Bonus Program.
21* Subsidiaries.
23.1 Consent of Independent Accountants.
23.2* Consent of Counsel (included in Exhibit 5.1).
24.1* Power of Attorney.
27.1* Financial Data Schedule.
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*Previously filed.
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-1 (File
No. 333-72935) of our reports, dated February 24, 1999 except for note 12, as
to which the date is April 30, 1999, on our audit of the financial statements
and the financial statement schedule of Latitude Communications, Inc. We also
consent to the references to our firm under the caption "Experts" and "Selected
Consolidated Financial Data."
/s/ PricewaterhouseCoopers LLP
San Jose, California
May 5, 1999
