<PAGE>
As filed with the Securities and Exchange Commission on July 22, 1999
Registration No. 333-78657
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Tanning Technology Corporation
(Exact name of registrant as specified in its charter)
Delaware 7379 84-1381662
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification Number)
incorporation or Classification Code
organization) Number)
----------------
4600 South Ulster Street, Suite 380
Denver, Colorado 80237
(303) 220-9944
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Henry F. Skelsey
Chief Financial Officer
Tanning Technology Corporation
4600 South Ulster Street, Suite 380
Denver, Colorado 80237
(303) 220-9944
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Joseph A. Stern, Esq. William J. Whelan, III, Esq.
Fried, Frank, Harris, Shriver & Cravath, Swaine & Moore
Jacobson 825 Eighth Avenue
One New York Plaza New York, New York 10019
New York, New York 10004 (212) 474-1000
(212) 859-8000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
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,
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, 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,
check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Each Class of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share Price(1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value per
share.......................... 4,600,000 $14.00 $64,400,000 $17,903.20(2)
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(a) under the Securities Act of 1933.
(2) Registration fee was paid with the initial filing and Amendment No. 4 to
the Registration Statement.
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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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth expenses and costs payable by Tanning (other
than underwriting discounts and commissions) expected to be incurred in
connection with the issuance and distribution of the securities described in
this registration statement. All amounts are estimated except for the
Securities and Exchange Commission's registration fee and the National
Association of Securities Dealers' filing fee.
<TABLE>
<CAPTION>
Amount
----------
<S> <C>
Registration fee under Securities Act........................ $ 15,985
NASD filing fee.............................................. 6,250
The Nasdaq National Market fees.............................. 95,000
Legal fees and expenses...................................... 750,000
Accounting fees and expenses................................. 200,000
Advisory fee................................................. 250,000
Printing and engraving expenses.............................. 200,000
Registrar and transfer agent fees............................ 10,000
Miscellaneous expenses....................................... 222,765
----------
Total...................................................... $1,750,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement in connection with specified
actions, suits and proceedings, whether civil, criminal, administrative, or
investigative (other than action by or in the right of the corporation--a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such action, and the statute requires court approval
before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be granted by a
corporation's certificate of incorporation, bylaws, disinterested director
vote, stockholder vote, agreement, or otherwise.
Tanning's bylaws currently, and Tanning's certificate of incorporation and
bylaws, as they will be amended and restated immediately prior to this
offering, require Tanning to indemnify to the fullest extent authorized by the
DGCL any person made or threatened to be made a party to an action, suit or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that he or she or a person of whom he or she is the legal
representative is or was a director of the officer of Tanning or is or was
serving at the request of Tanning as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans maintained
or sponsored by Tanning. Tanning will also be able to grant indemnification to
its other employees or agents. The amended and restated certificate of
incorporation and bylaws will also require Tanning to advance expenses, as
incurred, to its directors, officers and other agents and employees in
connection with a legal proceeding, to the fullest extent permitted by the
DGCL, subject to certain limited exceptions. The amended and restated
certificate of incorporation and bylaws will also permit Tanning to enter into
indemnification agreements with its directors and officers and to obtain
director and officer liability insurance.
II-1
<PAGE>
As permitted by Section 102(b)(7) of the DGCL, Tanning's certificate of
incorporation eliminates the liability of a director to the corporation or its
stockholders for monetary damages for such breach of fiduciary duty as a
director, except for liabilities arising (a) from any breach of the director's
duty of loyalty to the corporation or its stockholders; (b) from acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (c) under Section 174 of the DGCL; or (d) from any
transaction from which the director derived an improper personal benefit.
Tanning has obtained primary and excess insurance policies insuring its
directors and officers and those of its subsidiaries against certain
liabilities they may incur in their capacity as directors and officers. Under
these policies, the insurer, on behalf of Tanning, may also pay amounts for
which Tanning has granted indemnification to the directors or officers.
Additionally, Mr. Mahan, as an employee of AEA Investors Inc., and Mr. Skelsey,
as a consultant to AEA Investors Inc., are covered by an excess coverage
insurance policy maintained by AEA Investors Inc. against certain liabilities
they may incur in their capacity as directors of Tanning in excess of the
coverage provided by Tanning's director and officer insurance policies.
Additionally, reference is made to the Underwriting Agreement that will be
filed as Exhibit 1.1 to this registration statement, which provides for
indemnification by the Underwriters of Tanning, its directors and officers who
sign the registration statement and persons who control Tanning, under certain
circumstances.
Item 15. Recent Sales of Unregistered Securities.
Since January 31, 1997, we have issued and sold the securities listed below.
All sales were made in reliance on Section 4(2) of the Securities Act and/or
Regulation D or Rule 701 promulgated under the Securities Act and were made
without general solicitation or advertising. All share numbers set forth below
reflect the stock splits described in Note 1 to the Financial Statements, which
are included in the prospectus.
1. On January 31, 1997, we issued and sold 3,657,342 shares of common
stock to the "TTC Investors Group," which consists of TTC Investors I
LLC, TTC Investors IA LLC, TTC Investors II LLC and TTC Investors IIA
LLC, for aggregate consideration of $9,076,910.
2. On June 6, 1997, we issued and sold 1,469,917 shares of common stock to
the TTC Investors Group for aggregate consideration of $3,648,090.
3. On June 9, 1998, we issued and sold 569,511 shares of common stock to
the TTC Investors Group for aggregate consideration of $1,900,000.
4. We have granted stock options to employees, consultants, directors and
other service providers pursuant to our 1997 stock option plan and our
1998 stock option plan and we have sold common stock pursuant to
options exercised under this plan.
5. We have issued and sold common stock to our employees pursuant to our
1999 stock purchase plan.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
II-2
<PAGE>
The following documents are filed as exhibits to this registration
statement:
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<C> <S>
1.1 Form of Underwriting Agreement*
3.1 Form of Certificate of Incorporation of Tanning, as amended and
restated (to be effective upon consummation of the offering)*
3.2 Form of Bylaws of Tanning, as amended and restated (to be effective
upon consummation of the offering)*
4.1 Form of certificate of common stock*
4.2 Form of Amended and Restated Registration Rights Agreement by and
among Tanning and the parties listed as signatories thereto*
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson
10.1 Stock Purchase Agreement, dated as of December 24, 1996, by and among
Tanning Technology Group, L.L.C., Courtney Rose Corporation, WinSoft
Corporation, Hippeli Enterprises, Inc., Stephen Brobst, Larry Tanning,
Bipin Agarwal, Toni Hippeli and AEA Tanning Investors Inc.*
10.2 Supplement to Stock Purchase Agreement, dated as of January 31, 1997*
10.3 Amendment No. 1 to Stock Purchase Agreement, dated as of June 9, 1998,
by and among Tanning, Courtney Rose Corporation, WinSoft Corporation,
Hippeli Enterprises, Inc., Stephen Brobst, Larry Tanning, Bipin
Agarwal, Toni Hippeli, AEA Tanning Investors Inc., TTC Investors I
LLC, TTC Investors II LLC, TTC Investors IA LLC and TTC Investors IIA
LLC*
10.4 Form of Employment, Confidentiality and Non-Competition Agreement
(including Employee-Specific Terms) between Tanning and Larry Tanning*
10.5 Form of Promissory Note in the amount of $250,000, made by Larry
Tanning in favor of Tanning*
10.6 Form of Employment, Confidentiality and Non-Competition Agreement
(including Employee-Specific Terms) between Tanning and Bipin Agarwal*
10.7 Form of Promissory Note in the amount of $250,000, made by Bipin
Agarwal in favor of Tanning*
10.8 Form of Employment, Confidentiality and Non-Competition Agreement
between Tanning and each of P. Tracy Currie, Louis A. D'Alessandro,
Henry F. Skelsey, John Piccone, Mark Tanning and Frederick H. Fogel*
10.9 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and P. Tracy Currie, dated as of
January 30, 1999*
10.10 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and P. Tracy Currie, dated as of
June 1, 1997*
10.11 Employment and Expatriate Assignment Agreement between Tanning and P.
Tracy Currie, dated November 15, 1998*
10.12 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and Louis A. D'Alessandro, dated
as of February 1, 1999*
10.13 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and Louis A. D'Alessandro, dated
as of October 1, 1997*
10.14 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and Henry F. Skelsey, dated as
of June 1, 1999*
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<C> <S>
10.15 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and Henry F. Skelsey, dated as
of July 16, 1998*
10.16 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and John Piccone, dated as of
June 30, 1999*
10.17 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and Mark Tanning, dated as of
February 1, 1999*
10.18 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and Mark Tanning, dated as of
June 1, 1997*
10.19 Employee-Specific Terms of Employment, Confidentiality and Non-
Competition Agreement between Tanning and Frederick H. Fogel, dated as
of June 30, 1999*
10.20 Form of Amended and Restated Shareholder Agreement by and among
Tanning and the parties listed as signatories thereto*
10.21 Lease Agreement, dated as of January 31, 1995, between HD Delaware
Properties, Inc. and Tanning for premises at 4600 South Ulster Street*
10.22 Amendment No. 1 to Lease, dated as of September 15, 1995, by and
between HMS Office, Limited Partnership and Tanning for premises at
4600 South Ulster Street*
10.23 Amendment No. 2 to Lease, dated as of March 6, 1996, by and between
HMS Office, L.P. and Tanning for premises at 4600 South Ulster Street*
10.24 Amendment No. 3 to Lease, dated as of November 27, 1996, by and
between HMS Office, L.P. and Tanning for premises at 4600 South Ulster
Street*
10.25 Amendment No. 4 to Lease, dated as of July 11, 1997, by and between
HMS Office, L.P. and Tanning for premises at 4600 South Ulster Street*
10.26 Lease, dated as of June 3, 1998, by and between Denver Hines
Development, LLC and Tanning for premises at 4600 South Syracuse
Street*
10.27 Amendment No. 1 to Lease, dated as of March 11, 1999, by and between
Denver Hines Development, LLC and Tanning for premises at 4600 South
Syracuse Street*
10.28 Amendment No. 2 to Lease, dated as of May 28, 1999, by and between
Denver Hines Development, LLC and Tanning for premises at 4600 South
Syracuse Street*
10.29 Form of Excise Tax Agreement*
10.30 1997 Stock Option Plan*
10.31 1998 Stock Option Plan*
10.32 1999 Employee Stock Purchase Plan*
10.33 1999 Stock Option Plan*
10.34 Separation Agreement and Release between Tanning and Thomas J. Stack,
dated as of May 14, 1999*
21.1 Subsidiaries of Tanning*
23.1 Consent of Ernst & Young LLP
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in
Exhibit 5.1 above)
23.3 Consent of Michael E. Shanahan*
24.1 Power of Attorney*
27.1 Financial data schedule*
</TABLE>
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* Previously filed.
(b) Financial Statement Schedule
II-4
<PAGE>
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.
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, 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) 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.
(2) 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.
(3) 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 5 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Denver, State of Colorado, on July 22, 1999.
TANNING TECHNOLOGY CORPORATION
/s/ Henry F. Skelsey
By: __________________________________
Henry F. Skelsey
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Amendment No. 5 to
the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C>
Signature Title
Date
* President, Chief Executive
- ------------------------------ Officer and Director
Larry G. Tanning (Principal Executive
Officer)
/s/ Henry F. Skelsey Executive Vice President, July 22,
- ------------------------------ Chief Financial Officer and 1999
Henry F. Skelsey Director (Principal
Financial and Accounting
Officer)
* Director
- ------------------------------
Bipin Agarwal
* Director
- ------------------------------
Toni S. Hippeli
* Director
- ------------------------------
Christopher P. Mahan
* Director
- ------------------------------
Joseph P. Roebuck
/s/ Henry F. Skelsey July 22,
*By: _________________________ 1999
Henry F. Skelsey
Attorney-in-fact
</TABLE>
II-6
<PAGE>
EXHIBIT 5.1
[Letterhead of Fried, Frank, Harris, Shriver & Jacobson]
212-859-8280
July 22, 1999 (FAX: 212-859-8586)
Tanning Technology Corporation
4600 South Ulster Street, Suite 380
Denver, Colorado 80237
RE: Registration Statement on Form S-1 (No. 333-78657)
Ladies and Gentlemen:
We have acted as special counsel for Tanning Technology Corporation, a
Delaware corporation (the "Company"), in connection with the underwritten
initial public offering (the "Offering") by the Company of shares (the "Shares")
of common stock, $0.01 par value per share (the "Common Stock"), of the Company,
including Shares which may be offered and sold upon the exercise of an over-
allotment option granted to the underwriters. The Shares are to be offered to
the public pursuant to an underwriting agreement to be entered into among the
Company, Credit Suisse First Boston Corporation, Salomon Smith Barney Inc., CIBC
World Markets Corp., ING Barings LLC, and Adams, Harkness & Hill, Inc., as
representatives of the underwriters (the "Underwriting Agreement"). The opinion
set forth below is based on the assumption that, prior to the sale of the Shares
pursuant to the Underwriting Agreement, the Company's Amended and Restated
Certificate of Incorporation will have become effective substantially in the
form filed as Exhibit 3.1 to the Registration Statement, as amended, of the
Company on Form S-1 (No. 333-78657) (the "Registration Statement"), and that at
least par value will be paid for the Shares.
With your permission, all assumptions and statements of reliance herein
have been made without any independent investigation or verification on our part
except to the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy of such assumptions or items relied
upon.
In connection with this opinion, we have (i) investigated such questions of
law, (ii) examined originals or certified, conformed or reproduction copies of
such agreements, instruments, documents and records of the Company, such
certificates
<PAGE>
Tanning Technology Corporation -2- July 22, 1999
of public officials and such other documents, and (iii) received such
information from officers and representatives of the Company as we have deemed
necessary or appropriate for the purposes of this opinion. In all examinations,
we have assumed the legal capacity of all natural persons, the genuineness of
all signatures, the authenticity of original and certified documents and the
conformity to original or certified copies of all copies submitted to us as
conformed or reproduction copies. As to various questions of fact relevant to
the opinions expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the Underwriting Agreement and
certificates and oral or written statements and other information of or from
representatives of the Company and others and assume compliance on the part of
all parties to the Underwriting Agreement with their covenants and agreements
contained therein.
Based upon the foregoing and subject to the limitations, qualifications and
assumptions set forth herein, we are of the opinion that the Shares registered
pursuant to the Registration Statement (when issued, delivered and paid for in
accordance with the terms of the Underwriting Agreement) will be duly
authorized, validly issued, fully paid and non-assessable.
The opinion expressed herein is limited to the General Corporation Law of
the State of Delaware, as currently in effect (including judicial decisions
interpreting that statute).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus forming part of the Registration Statement. In
giving such consent, we do not hereby admit that we are in the category of such
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended.
Frederick H. Fogel, a partner in our law firm, has been appointed Vice
President of Business Affairs and General Counsel of the Company.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ Kenneth R. Blackman
_____________________________________
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the captions "Selected
Financial Data" and "Experts" and to the use of our reports dated February 26,
1999, except for Note 4 as to which the date is May 17, 1999, in Amendment No.
4 to the Registration Statement No. 333-78657 and related Prospectus of Tanning
Technology Corporation.
/s/ Ernst & Young LLP
Denver, Colorado
July 21, 1999
