<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 5, 2000
REGISTRATION NO. 333-45940
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OMM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3661 33-0762894
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
9410 CARROLL PARK DRIVE
SAN DIEGO, CA 92121
(858) 362-2800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
PHILIP CHAPMAN
CHIEF FINANCIAL OFFICER
OMM, INC.
9410 CARROLL PARK DRIVE
SAN DIEGO, CA 92121
(858) 362-2800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
<TABLE>
<S> <C>
BRUCE M. MCNAMARA, ESQ. THOMAS COLL, ESQ.
THOMAS I. SAVAGE, ESQ. NADER BITAR, ESQ.
EDWARD F. VERMEER, ESQ. JASON CONGER, ESQ.
LINDA Y. SUNG, ESQ. COOLEY GODWARD LLP
WILSON SONSINI GOODRICH & ROSATI 4365 EXECUTIVE DRIVE
PROFESSIONAL CORPORATION SUITE 1100
650 PAGE MILL ROAD SAN DIEGO, CA 92121-2128
PALO ALTO, CA 94304 (858) 550-6000
(650) 493-9300
</TABLE>
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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 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> 2
EXPLANATORY NOTE
The purpose of this Amendment No. 1 to the Registration Statement is solely
to file certain exhibits to the Registration Statement, as set forth below in
Item 16(a) of Part II.
<PAGE> 3
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 discount and commissions, payable by the registrant in connection
with the sale of common stock being registered. All amounts are estimates except
the SEC registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee........................................ $ 26,400
NASD filing fee............................................. 12,000
Nasdaq National Market listing fee.......................... 95,000
Printing and engraving costs................................ 75,000
Legal fees and expenses..................................... 600,000
Accounting fees and expenses................................ 250,000
Blue sky fees and expenses.................................. 15,000
Transfer Agent and Registrar fees........................... 5,000
Miscellaneous expenses...................................... 11,600
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Total............................................. $1,090,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, or DGCL, permits
indemnification of officers, directors and other corporate agents under certain
circumstances and subject to certain limitations. Our Certificate of
Incorporation and Bylaws provide that we shall indemnify our directors, officers
and agents to the fullest extent permitted by the DGCL against judgments and
monetary damages as a result of such individual serving as a director, officer
or agent, including in circumstances in which indemnification is otherwise
discretionary under such law. Our Bylaws also provide that we shall advance
expenses incurred by a director, officer or agent in advance of a final
disposition of such action provided we receive an undertaking by such individual
to repay the amounts advanced if it is ultimately determined that he is not
entitled to be indemnified. In addition, with the approval of our board of
directors and our stockholders, we have entered into separate indemnification
agreements with our directors, officers and certain employees that require us,
among other things, to indemnify them to the fullest extent permitted by law
against any judgments, amounts paid in settlement and all expenses incurred in
connection with defending any action that may arise by reason of their status or
service (other than liabilities arising from willful misconduct of a culpable
nature) and to obtain directors' and officers' insurance, if available on
reasonable terms. We are required to advance expenses incurred by a party to
such indemnification agreement in advance of a determination or judgment subject
to a determination by our board of directors or another party who is not a party
or defendants to such claim that the party to the indemnification agreement
would not be permitted to be indemnified under applicable law. Parties to the
indemnification agreements would not be indemnified for any acts, omissions or
transactions for which they are prohibited from receiving indemnification under
applicable law.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since inception, we have 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 we believe 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,
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<PAGE> 4
and appropriate legends were affixed to the share certificates and instruments
issued in such transactions. All recipients had adequate access, through their
relationships with us, to information about us.
Within the last three years as of August 31, 2000, the registrant has
issued stock options to purchase 23,233,250 shares of common stock with exercise
prices ranging from $0.0067 to $2.60 under its 1997 Stock Option Plan. Of the
options, options for 9,622,201 shares have been exercised, options for 67,500
shares have been cancelled and options for 13,543,549 shares remain outstanding
under the 1997 Stock Option Plan.
The registrant issued and sold 1,000,000 shares of Series A preferred stock
at a price of $0.20 per share to individual and institutional investors in a
private placement transaction on August 11, 1997 and on October 18, 1997. Each
share of Series A preferred stock is convertible into three (3) shares of common
stock. The total aggregate proceeds to the registrant in the private placement
transaction was approximately $200,000.
The registrant issued and sold 2,350,410 shares of Series B preferred stock
at a price of $0.468 per share to individual and institutional investors in a
private placement transaction on December 31, 1997 and on June 16, 1998. Each
share of Series B preferred stock is convertible into three (3) shares of common
stock. The total aggregate proceeds to the registrant in the private placement
transaction was approximately $1,100,000.
The registrant issued and sold 6,966,162 shares of Series C preferred stock
at a price of $0.73 per share to individual and institutional investors in a
private placement transaction on October 16, 1998 and on December 14, 1998. Each
share of Series C preferred stock is convertible into three (3) shares of common
stock. The total aggregate proceeds to the registrant in the private placement
transaction was approximately $5,085,300.
The registrant issued and sold 8,911,992 shares of Series D preferred stock
at a price of $2.477 per share to individual and institutional investors in a
private placement transaction on November 16, 1999. Each share of Series D
preferred stock is convertible into three (3) shares of common stock. The total
aggregate proceeds to the registrant in the private placement transaction was
approximately $22,075,000.
The registrant issued and sold 4,355,398 shares of Series E preferred stock
at a price of $17.22 per share to individual and institutional investors in a
private placement transaction on May 31, 2000 and on June 14, 2000. Each share
of Series E preferred stock is convertible into three (3) shares of common
stock. The total aggregate proceeds to the registrant in the private placement
transaction was approximately $75,000,000.
The registrant issued warrants to purchase up to an aggregate of 132,000
shares of common stock at an exercise price of $0.1667 per share to James Smith
& Company in a private placement transaction on March 1, 2000. The rights to
exercise the warrants will terminate upon the earliest of (i) the expiration of
five (5) years from the date of the warrant, (ii) an initial public offering by
the registrant of its stock having aggregate proceeds of at least $10,000,000 or
(iii) a merger or acquisition.
The registrant issued a warrant to purchase up to an aggregate of 98,493
shares of Series C Preferred Stock at an exercise price of $0.73 per share to
Silicon Valley Bank in a private placement transaction on April 5, 1999. Each
share of Series C Preferred Stock is convertible into three (3) shares of common
stock. The rights to exercise the warrant will terminate after five (5) years
from the date of the warrant provided that notice of the expiration of the
warrant is given not less than 30 days prior to the expiration date.
The registrant issued warrants to purchase up to an aggregate of 315,069
shares of Series C Preferred Stock at an exercise price of $0.73 per share to
Comdisco in a private placement transaction on April 15, 1999 and May 3, 1999.
Each share of Series C Preferred Stock is convertible into three (3) shares of
common stock. The rights to exercise the warrants will terminate upon the latter
of (i) seven (7) years from the date of the warrant or (ii) three (3) years from
an initial public offering of by the registrant of its stock.
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The registrant issued a warrant to purchase up to an aggregate of 27,967
shares of Series C Preferred Stock at an exercise price of $0.73 per share to
Busch International in a private placement transaction on July 30, 1999. Each
share of Series C Preferred Stock is convertible into three (3) shares of common
stock. The rights to exercise the warrant will terminate upon the earliest of
(i) the expiration of five (5) years from the date of the warrant, (ii) an
initial public offering having aggregate proceeds of at least $10,000,000 or
(iii) a merger or acquisition.
The registrant issued warrants to purchase an aggregate of 201,857 shares
of Series D Preferred Stock at an exercise price of $2.477 per share to
Comdisco, Meier Mitchell & Company and Silicon Valley Bank in a private
placement transaction on April 7, 2000. Each share of Series D Preferred Stock
is convertible into three (3) shares of common stock. The rights to exercise the
warrants will terminate upon the expiration of ten (10) years.
The registrant issued warrants to purchase up to an aggregate of 50,000
shares of common stock at an exercise price of $8.00 per share to WS Investment
Company 2000B and certain members of Wilson Sonsini Goodrich & Rosati in a
private placement transaction on September 5, 2000. The rights to exercise the
warrants will terminate upon September 4, 2005.
The sales of the above securities were deemed to be exempt from
registration in reliance on Rule 701 promulgated under Section 3(b) under the
Securities Act as transactions pursuant to a compensatory benefit plan or a
written contract relating to compensation, or in reliance on Section 4(2) of the
Securities Act or Regulation D promulgated thereunder as transactions by an
issuer not involving any public offering. 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 other instruments issued in such transactions. All recipients
either received adequate information about OMM, Inc. or had access, through
employment or other relationships, to such information.
ITEM 16. EXHIBITS
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1* Form of Underwriting Agreement
3.1 Amended and Restated Certificate of Incorporation of the
registrant
3.2 Second Amended and Restated Bylaws of the registrant
4.1* Form of Common Stock Certificate
4.2 Form of Warrant to Purchase Series C Preferred Stock of the
registrant held by Busch International
4.3 Form of Warrant to Purchase Series C Preferred Stock of the
registrant held by Comdisco, dated as of April 8, 1999
4.4 Form of Warrant to Purchase Series C Preferred Stock of the
registrant held by Silicon Valley Bank
4.5* Form of Warrant to Purchase Stock of the registrant held by
WS Investment Company 2000B
4.6 Form of Warrant to Purchase Series D Preferred Stock of the
registrant held by Comdisco, Meier Mitchell & Company and
Silicon Valley Bank
4.7 Form of Warrant to Purchase Series C Preferred Stock of the
registrant held by Comdisco, dated as of May 3, 1999
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
10.1 Form of indemnification agreement entered into by the
registrant with each of its directors and executive officers
10.2 Amended and Restated Shareholders Rights Agreement dated as
of May 31, 2000 by between the registrant and certain
stockholders, as amended
10.3 Founders Restricted Stock Purchase Agreement by and between
the registrant and Anis Husain dated July 2, 1997.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.4 Full Recourse Promissory Note held by the registrant for Hus
Tigli dated as of March 20, 2000
10.5 Change of Control Agreement between the registrant and Hus
Tigli dated as of January 24, 2000
10.6 Change of Control Agreement between the registrant and Anis
Husain dated as of June 7, 2000
10.7 Change of Control Agreement between the registrant and
Philip Chapman dated as of May 12, 2000
10.8 Change of Control Agreement between the registrant and James
Hartman dated as of May 26, 2000
10.9 Change of Control Agreement between the registrant and
Conrad Burke dated as of May 26, 2000
10.10 Change of Control Agreement between the registrant and
Christian Lepiane dated as of May 26, 2000
10.11 Amended and Restated 1997 Stock Plan
10.12 Form of Stock Option Agreement
10.13 2000 Employee Stock Purchase Plan
10.14 San Diego Tech Center Office Building Lease between the
registrant and San Diego Tech Center, LLC dated as of March
25, 1999
10.15 First Amendment to Lease between the registrant and San
Diego Tech Center, LLC dated as of January 18, 1999
10.16 Industrial Lease between the registrant and the Irvine
Company dated as of May 2000
10.17 Loan and Security Agreement by and among the registrant,
MMC-GATX Partnership No. 1, Silicon Valley Bank and
Comdisco, Inc. dated as of April 7, 2000
10.18 Loan and Security Agreement between the registrant and
Silicon Valley Bank dated as of April 5, 1999
10.19 Loan and Security Agreement between the registrant and
Comdisco, Inc. dated as of March 23, 1999
10.20 Master Lease Agreement by and between the registrant and
Comdisco, Inc. dated as of March 23, 1999
23.1** Consent of PricewaterhouseCoopers LLP
23.2* Consent of Counsel. (see Exhibit 5.1)
24.1** Power of Attorney (see page II-6)
</TABLE>
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* To be filed by amendment
** 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 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
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<PAGE> 7
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.
The 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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<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 1 to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of San Diego, State of California, on the 5th day of October, 2000.
OMM, Inc.
By: *
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Hus Tigli
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<C> <C> <S>
* President, Chief Executive October 5, 2000
----------------------------------------------------- Officer and Director
Hus Tigli (Principal Executive Officer)
/s/ PHILIP CHAPMAN Chief Financial Officer October 5, 2000
----------------------------------------------------- (Principal Financial and
Philip Chapman Accounting Officer)
* Chief Technology Officer and October 5, 2000
----------------------------------------------------- Chairman
Anis Husain
* Director October 5, 2000
-----------------------------------------------------
Stephen Domenik
* Director October 5, 2000
-----------------------------------------------------
Barry Fidelman
* Director October 5, 2000
-----------------------------------------------------
Bruce Graham
*By: /s/ PHILIP CHAPMAN
----------------------------------------------------
Philip Chapman
Attorney-in-fact
</TABLE>
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<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
1.1* Form of Underwriting Agreement
3.1 Amended and Restated Certificate of Incorporation of the
registrant
3.2 Second Amended and Restated Bylaws of the registrant
4.1* Form of Common Stock Certificate
4.2 Form of Warrant to Purchase Series C Preferred Stock of the
registrant held by Busch International
4.3 Form of Warrant to Purchase Series C Preferred Stock of the
registrant held by Comdisco, dated as of April 8, 1999
4.4 Form of Warrant to Purchase Series C Preferred Stock of the
registrant held by Silicon Valley Bank
4.5* Form of Warrant to Purchase Stock of the registrant held by
WS Investment Company 2000B
4.6 Form of Warrant to Purchase Series D Preferred Stock of the
registrant held by Comdisco, Meier Mitchell & Company and
Silicon Valley Bank
4.7 Form of Warrant to Purchase Series C Preferred Stock of the
registrant held by Comdisco, dated as of May 3, 1999
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
10.1 Form of indemnification agreement entered into by the
registrant with each of its directors and executive officers
10.2 Amended and Restated Shareholders Rights Agreement dated as
of May 31, 2000 by between the registrant and certain
stockholders, as amended
10.3 Founders Restricted Stock Purchase Agreement by and between
the registrant and Anis Husain dated July 2, 1997.
10.4 Full Recourse Promissory Note held by the registrant for Hus
Tigli dated as of March 20, 2000
10.5 Change of Control Agreement between the registrant and Hus
Tigli dated as of January 24, 2000
10.6 Change of Control Agreement between the registrant and Anis
Husain dated as of June 7, 2000
10.7 Change of Control Agreement between the registrant and
Philip Chapman dated as of May 12, 2000
10.8 Change of Control Agreement between the registrant and James
Hartman dated as of May 26, 2000
10.9 Change of Control Agreement between the registrant and
Conrad Burke dated as of May 26, 2000
10.10 Change of Control Agreement between the registrant and
Christian Lepiane dated as of May 26, 2000
10.11 Amended and Restated 1997 Stock Plan
10.12 Form of Stock Option Agreement
10.13 2000 Employee Stock Purchase Plan
10.14 San Diego Tech Center Office Building Lease between the
registrant and San Diego Tech Center, LLC dated as of March
25, 1999
10.15 First Amendment to Lease between the registrant and San
Diego Tech Center, LLC dated as of January 18, 1999
10.16 Industrial Lease between the registrant and the Irvine
Company dated as of May 2000
10.17 Loan and Security Agreement by and among the registrant,
MMC-GATX Partnership No. 1, Silicon Valley Bank and
Comdisco, Inc. dated as of April 7, 2000
10.18 Loan and Security Agreement between the registrant and
Silicon Valley Bank dated as of April 5, 1999
10.19 Loan and Security Agreement between the registrant and
Comdisco, Inc. dated as of March 23, 1999
10.20 Master Lease Agreement by and between the registrant and
Comdisco, Inc. dated as of March 23, 1999
23.1** Consent of PricewaterhouseCoopers LLP
23.2* Consent of Counsel. (see Exhibit 5.1)
24.1** Power of Attorney (see page II-6)
</TABLE>
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* To be filed by amendment
** Previously filed
