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As filed with the Securities and Exchange Commission on August 4, 1999
Registration No. 333-79501
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UNITED STATES
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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MISSION CRITICAL SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 7372 76-0509513
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
Mission Critical Software, Inc.
720 North Post Oak Road, Suite 505
Houston, Texas 77024
(713) 548-1700
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Stephen E. Odom
Chief Financial Officer
Mission Critical Software, Inc.
720 North Post Oak Road, Suite 505
Houston, Texas 77024
(713) 548-1700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Robert P. Latta John S. Watson
Paul R. Tobias Brian M. Moss
Julia Reigel Vinson & Elkins L.L.P.
Matthew J. Esber First City Tower
Wilson Sonsini Goodrich & Rosati Suite 2300
Professional Corporation 1001 Fannin Street
8911 Capital of Texas Highway North Houston, Texas 77022-6760
Suite 3110 (713) 758-2222
Austin, Texas 78759
(512) 338-5400
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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
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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 145 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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 such 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 by Mission Critical Software in
connection with the sale of common stock being registered. All amounts are
estimates except the SEC registration fee and the NASD filing fee.
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SEC registration fee............................................ $ 16,785
NASD filing fee................................................. 7,860
Nasdaq National Market listing fee.............................. 100,000
Printing and engraving costs.................................... 175,000
Legal fees and expenses......................................... 350,000
Accounting fees and expenses.................................... 179,000
Blue Sky fees and expenses...................................... 10,000
Transfer Agent and Registrar fees............................... 10,000
Miscellaneous expenses.......................................... 26,355
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Total........................................................... $875,000
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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. Articles Nine and Ten of
the Registrant's Restated Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
law. Article 8 of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Registrant if
such person acted in good faith and in a manner reasonably believed to be in
and not opposed to the best interest of the Registrant, and, with respect to
any criminal action or proceeding, the indemnified party had no reason to
believe his or her conduct was unlawful. The Registrant has entered into
indemnification agreements with its directors and executive officers, in
addition to indemnification provided for in the Registrant's 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, the Registrant has issued unregistered
securities to a limited number of persons, as described below. None of these
transactions involved any underwriters, underwriting discounts or commissions,
or any public offering, and the Registrant 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 of securities in each 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 the Registrant, to
information about the Registrant.
Since July 1996, (inception), the Registrant has issued and sold (without
payment of any selling commission to any person) the following unregistered
securities:
1. On September 4, 1996, the Registrant issued and sold pursuant to
Section 4(2) of the Securities Act:
. 2,431,350 shares of Common Stock to employees for $3,000,
. 1,818,650 shares of Series A Preferred Stock to one investor and
one director in exchange for our OnePoint Administrator Software,
and $25,000 and
. 2,650,000 shares of Series B Preferred Stock to seven investors
for an aggregate purchase price of $2,650,000.
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2. On July 2, 1997, the Registrant issued and sold 3,450,000 shares of
Series C Preferred Stock to twelve investors for an aggregate purchase
price of $10,350,000 pursuant to Section 4(2), promulgated under the
Securities Act.
3. Pursuant to Rule 701 promulgated under the Securiites Act, from
March 1997 to June 30, 1999, the Registrant issued and sold 866,161 shares
of Common Stock to employees and consultants for aggregate consideration of
$0.50, upon exercise of stock options, pursuant to the Registrant's 1997
Stock Option Plan.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
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1.1** Form of Underwriting Agreement
3.1.1** Amended and Restated Certificate of Incorporation of the Registrant
3.1.2** Form of Certificate of Incorporation of the Registrant to be filed
after the closing of the offering made under this Registration
Statement
3.2.1** Amended and Restated Bylaws of the Registrant
3.2.2** Form of Bylaws of the Registrant to be in effect after the closing of
the offering made under this Registration Statement
4.1** Specimen common stock certificate
4.2** Amended and Restated Investors Rights Agreement, dated as of July 2,
1997, by and among the Registrant and certain stockholders of the
Registrant
4.3** Amended and Restated Stockholders' Agreement, dated as of July 2,
1997, by and among the Registrant and certain stockholders of the
Registrant
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
10.1** Form of Indemnification Agreement between the Registrant and each of
its directors and officers
10.2** Amended and Restated 1997 Stock Option Plan
10.2.1** Form of Option Agreement under the 1997 Stock Option Plan
10.3** 1999 Employee Stock Purchase Plan
10.3.1** Form of Subscription Agreement under the 1999 Employee Stock Purchase
Plan
10.4** 1999 Director Option Plan
10.4.1** Form of Option Agreement under 1999 Director Option Plan
10.5** Lease Agreement dated October 22, 1996 between Soaring Eagles
Orchard, Inc. and the Registrant for the premises located at 720
North Post Oak Road, Houston, Texas 77024
10.5.1** First Amendment dated February 13, 1997 to Lease Agreement between
Soaring Eagles Orchards, Inc. and the Registrant
10.5.2** Second Amendment dated April 1, 1997 to Lease Agreement between
Soaring Eagles Orchards, Inc. and the Registrant
10.5.3** Third Amendment dated July 22, 1997 to Lease Agreement between
Soaring Eagles Orchards, Inc. and the Registrant
10.6** Quickstart Loan and Security Agreement dated February 7, 1997 between
the Registrant and Silicon Valley Bank
10.6.1** Amendment dated January 23, 1998 to Quickstart Loan Agreement between
Silicon Valley Bank and the Registrant
10.6.2** Loan and Security Agreement dated January 26, 1998 between the
Registrant and Silicon Valley Bank
10.6.3** First Amendment dated March 19, 1999 to Loan and Security Agreement
between the Registrant and Silicon Valley Bank
10.7** Employment Agreement dated September 4, 1996 between the Registrant
and Paul F. Koffend, Jr.
10.8** Employment Agreement dated September 4, 1996 between the Registrant
and Louis R. Woodhill
10.8.1** Amended and Restated Employment Agreement dated May 21, 1998 between
the Registrant and Louis R. Woodhill
10.9** Employment Agreement dated September 4, 1996 between the Registrant
and James R. Woodhill
10.10** Employment Agreement dated January 1, 1997 between the Registrant and
Thomas P. Bernhardt
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10.10.1** Consulting Agreement dated September 4, 1996 between the Registrant
and Thomas P. Bernhardt
10.11** Employment Agreement dated August 6, 1997 between the Registrant and
Brian McGrath
10.11.1** Letter Agreement dated January 13, 1999 between the Registrant and
Brian McGrath
10.12** Employment Agreement dated February 23, 1998 between the Registrant
and Olivier Thierry
10.12.1** Relocation Agreement dated February 23, 1998 between the Registrant
and Olivier Thierry
10.13** Offer Letter dated April 13, 1998 between the Registrant and Michael
S. Bennett
10.14** Offer Letter dated April 13, 1998 between the Registrant and Stephen
E. Odom
10.15** Offer Letter dated May 28, 1998 between the Registrant and Leslie D.
Willard
10.15.1** Letter Agreement dated May 26, 1999 between the Registrant and
Leslie D. Willard
10.16** Employment Agreement dated December 21, 1998 between the Registrant
and Richard Pleczko
10.16.1** Offer Letter dated December 2, 1998 between Registrant and Richard
Pleczko
10.17** Sub-Lease Agreement between Learmonth & Burchett Management Systems
and the Registrant regarding the premises located at 9009 Mountain
Ridge Drive, Suite 250, Austin, Texas 78759
10.18** Offer Letter dated February 8, 1999 between the Registrant and
Richard Kangas
10.18.1** Employment Agreement dated February 8, 1999 between the Registrant
and Richard Kangas
10.19** Offer Letter dated March 1, 1999 between the Registrant and Michael
J. Rovner
10.19.1** Employment Agreement dated March 24, 1999 between the Registrant and
Michael J. Rovner
10.20** Form of Consulting Agreement
10.21** Lease Agreement dated April 8, 1999 between the Registrant and
EnergyCorp Group LC for the premises located at 13939 Northwest
Freeway, Houston, Texas
21.1** Subsidiaries of the Registrant
23.1* Consent of Independent Auditors
23.2** Consent of Counsel (included in Exhibit 5.1)
24.1** Power of Attorney
27.1** Financial Data Schedule
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*Filed herewith.
**Previously filed.
(b) Financial Statement Schedules
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
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 by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement 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, 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 a
director, officer or controlling person in connection with the securities being
registered hereunder, 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 Securities Act and will be governed
by the final adjudication of such issue.
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The undersigned Registrant hereby undertakes 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 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, 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, 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 Houston,
State of Texas, on the 4th day of August 1999.
MISSION CRITICAL SOFTWARE, INC.
By: /s/ Michael S. Bennett
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Michael S. Bennett
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 4 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
Signature Title Date
/s/ Michael S. Bennett President, Chief
- ----------------------------------- Executive Officer and August 4, 1999
(Michael S. Bennett) Director (Principal
Executive Officer)
/s/ Stephen E. Odom Chief Operating Officer,
- ----------------------------------- Chief Financial Officer, August 4, 1999
(Stephen E. Odom) Treasurer and Secretary
(Principal Financial and
Accounting Officer)
/s/ Thomas P. Bernhardt* Chief Technology
- ----------------------------------- Officer and August 4, 1999
(Thomas P. Bernhardt) Director
/s/ Douglas L. Ayer* Director
- ----------------------------------- August 4, 1999
(Douglas L. Ayer)
/s/ Michael J. Maples* Director
- ----------------------------------- August 4, 1999
(Michael J. Maples)
/s/ John J. Moores* Director
- ----------------------------------- August 4, 1999
(John J. Moores)
/s/ Scott D. Sandell* Director
- ----------------------------------- August 4, 1999
(Scott D. Sandell)
/s/ John D. Thornton* Director
- ----------------------------------- August 4, 1999
(John D. Thornton)
*By: /s/ Stephen E. Odom
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Stephen E. Odom
Attorney-in-Fact
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to the
use of our report dated July 7, 1999, in Amendment No. 5 to the Registration
Statement (Form S-1) and related Prospectus of Mission Critical Software, Inc.
for the registration of shares of its common stock.
/s/ ERNST & YOUNG LLP
Austin, Texas
July 30, 1999
