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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 10, 2000
REGISTRATION NO. 333-
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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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OTG SOFTWARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 7372 52-1769077
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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6701 DEMOCRACY BOULEVARD, SUITE 800
BETHESDA, MD 20817
(301) 897-1400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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RICHARD A. KAY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
OTG SOFTWARE, INC.
6701 DEMOCRACY BOULEVARD, SUITE 800
BETHESDA, MD 20817
(301) 897-1400
(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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DAVID SYLVESTER, ESQ. EDWIN M. MARTIN, JR., ESQ.
BRENT B. SILER, ESQ. JANE K. P. TAM, ESQ.
SCOTT E. PUESCHEL, ESQ. PIPER MARBURY RUDNICK & WOLFE LLP
HALE AND DORR LLP 1200 19TH STREET, N.W.
1455 PENNSYLVANIA AVENUE, N.W. WASHINGTON, D.C. 20036
WASHINGTON, D.C. 20004 TELEPHONE: (202) 861-3900
TELEPHONE: (202) 942-8400 TELECOPY: (202) 223-2085
TELECOPY: (202) 942-8484
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date hereof.
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. [ ]
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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 number of the earlier effective registration statement for the same
offering. [ ]
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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 number of the earlier effective registration statement for the same
offering. [ ]
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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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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 the
underwriting discount, payable by the Registrant in connection with the sale of
common stock being registered. All amounts are estimates except the SEC
registration fee, the NASD filing fees and the Nasdaq National Market listing
fee.
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SEC registration fee........................................ $18,216
NASD filing fee............................................. 7,400
Nasdaq National Market listing fee.......................... *
Printing and engraving expenses............................. *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Blue Sky fees and expenses (including legal fees)........... *
Transfer agent and registrar fees and expenses.............. *
Miscellaneous............................................... *
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Total............................................. $ *
=======
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* To be filed by amendment.
The Company will bear all expenses shown above.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Certificate of Incorporation (the
"Restated Certificate") provides that, except to the extent prohibited by the
Delaware General Corporation Law (the "DGCL"), the Registrant's directors shall
not be personally liable to the Registrant or its stockholders for monetary
damages for any breach of fiduciary duty as directors of the Registrant. Under
the DGCL, the directors have a fiduciary duty to the Registrant which is not
eliminated by this provision of the Restated Certificate and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of
nonmonetary relief will remain available. In addition, each director will
continue to be subject to liability under the DGCL for breach of the director's
duty of loyalty to the Registrant, for acts or omissions which are found by a
court of competent jurisdiction to be not in good faith or involving intentional
misconduct, for knowing violations of law, for actions leading to improper
personal benefit to the director, and for payment of dividends or approval of
stock repurchases or redemptions that are prohibited by the DGCL. This provision
also does not affect the directors' responsibilities under any other laws, such
as the federal securities laws or state or federal environmental laws. The
Registrant has obtained liability insurance for its officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its directors
and officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that this provision
shall not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) arising under Section 174 of the DGCL including
for an unlawful payment of dividend or unlawful stock purchase or redemption, or
(iv) for any transaction from which the director derived an improper personal
benefit. The DGCL
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provides further that the indemnification permitted thereunder shall not be
deemed exclusive of any other rights to which the directors and officers may be
entitled under the corporation's by-laws, any agreement, a vote of stockholders
or otherwise. The Restated Certificate eliminates the personal liability of
directors to the fullest extent permitted by the DGCL and, together with the
Registrant's Amended and Restated By-Laws (the "Restated By-Laws") and
Indemnification Agreements to be entered into with each executive officer and
director, provides that the Registrant shall fully indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that such person is or was a director or
officer of the Registrant, or is or was serving at the request of the Registrant
as a director or officer of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding. Reference is made to the Registrant's Form of Amended and Restated
Certificate of Incorporation, Form of Amended and Restated By-Laws and Form of
Indemnification Agreement filed as Exhibits 3.2, 3.4, and 10.6 hereto,
respectively.
The Underwriting Agreement provides that the Underwriters are obligated,
under certain circumstances, to indemnify directors, officers and controlling
persons of the Company against certain liabilities, including liabilities under
the Securities Act of 1933, as amended (the "Act"). Reference is made to the
form of Underwriting Agreement to be filed as Exhibit 1.1 hereto.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent as to which indemnification will be
required or permitted under the Restated Certificate. The Registrant is not
aware of any threatened litigation or proceeding that may result in a claim for
such indemnification.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The following information regarding the issuance of the Registrant's
securities does not give effect to the stock split of the Registrant's common
stock. Pursuant to the Registrant's stock split, each share of common stock will
be split into a to-be-determined number of shares. Since December 1996, the
Registrant has issued the following securities that were not registered under
the Securities Act as summarized below.
(a) Issuances of Capital Stock, Convertible Notes and Warrants.
1. On January 1, 1997, our predecessor Maryland corporation issued
8.647 shares of common stock to one of its executive officers, for an
aggregate purchase price of $102,698. The purchaser issued our predecessor
Maryland corporation a promissory note for the aggregate purchase price.
The promissory note earns 8% interest per year and principal and interest
become due and payable on January 1, 2002.
2. On June 8, 1998, in connection with our reincorporation into
Delaware, the Registrant issued an aggregate of 13,103,803 shares of common
stock to four individuals in exchange for all the outstanding common stock
of our predecessor Maryland corporation.
3. On June 9, 1998, the Registrant issued convertible subordinated
notes in the aggregate principal amount of $7,636,364 to one individual and
two institutional investors. The convertible subordinated notes earn 8%
interest per year from the date of issuance to June 9, 1999, 10% interest
from June 9, 1999 to June 9, 2000 and 12% interest from June 9, 2000 to
maturity on December 9, 2000. Upon the closing of this offering, the
principal balance of the convertible subordinated notes converts
automatically into 2,080,753 shares of the Registrant's common stock and
the interest thereon is forgiven.
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4. On December 1, 1998, the Registrant issued a warrant to purchase
15,000 shares of common stock to one individual in exchange for an executed
release agreement.
5. On December 22, 1998, the Registrant issued an aggregate of 238,095
shares of common stock to five employees for an aggregate purchase price of
$873,809 pursuant to restricted stock agreements under the Registrant's
1998 Stock Incentive Plan.
(b) Certain Grants and Exercises of Stock Options. The Registrant's 1998
Stock Incentive Plan was adopted by the Board of Directors and approved by the
stockholders of the Registrant in August 1998. As of December 22, 1999, no
options to purchase shares of common stock had been exercised and options to
purchase 1,800,860 shares of common stock were outstanding under the 1998 Stock
Incentive Plan.
No underwriters were involved in the foregoing sales of securities. Such
sales were made in reliance upon an exemption from the registration provisions
of the Securities Act set forth in Section 4(2) thereof relative to sales by an
issuer not involving any public offering or the rules and regulations
thereunder, or, in the case of options to purchase common stock, Rule 701 of the
Securities Act. All of the foregoing securities are deemed restricted securities
for the purposes of the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
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EXHIBIT
NO. DESCRIPTION
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1.1* Form of Underwriting Agreement
3.1* Certificate of Incorporation of the Registrant, as amended
3.2* Form of Amended and Restated Certificate of Incorporation of
the Registrant, to be filed prior to the closing of this
offering
3.3* By-Laws of the Registrant
3.4* Form of Amended and Restated By-Laws of the Registrant, to
be effective upon the closing of this offering
4.1* Specimen common stock certificate
4.2* See Exhibits 3.1, 3.2, 3.3 and 3.4 for provisions of the
Certificate of Incorporation and By-Laws of the Registrant
defining the rights of holders of common stock of the
Registrant
5.1* Opinion of Hale and Dorr LLP
10.1* 1998 Stock Incentive Plan, as amended
10.2* 2000 Stock Incentive Plan
10.3* 2000 Employee Stock Purchase Plan
10.4* 401(k) Plan
10.5* Lease for 6701 Democracy Boulevard, Suite 805, Bethesda,
Maryland 20817
10.6* Form of Indemnification Agreement
10.7* Employment Agreement with Richard A. Kay, as amended
10.8* Employment Agreement with F. William Caple, as amended
10.9* Employment Agreement with Ronald W. Kaiser, as amended
16.1 Letter from Grant Thornton LLP
21.1* Subsidiaries of the Registrant
23.1+ Consent of KPMG LLP
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EXHIBIT
NO. DESCRIPTION
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23.2* Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1+ Powers of Attorney
27.1+ Financial Data Schedule
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* To be filed by amendment.
+ Previously filed.
(b) Financial Statements:
Schedule II -- Valuation and Qualifying Accounts
All other schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission are not required
under the related instructions or are inapplicable, and therefore have been
omitted.
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, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of the registrant pursuant to the Delaware General
Corporation Law, the Restated Certificate of the registrant, the Underwriting
Agreement, 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 hereunder, the registrant
will, unless in the opinion of 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 purpose 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 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 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
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 of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Bethesda, Maryland, on this 10(th)
day of January, 2000.
OTG SOFTWARE, INC.
By: *
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Richard A. Kay
President, Chief Executive Officer
and
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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* President, Chief Executive January 10, 2000
- --------------------------------------------- Officer and Chairman of the
Richard A. Kay Board of Directors (Principal
Executive Officer)
/s/ F. WILLIAM CAPLE Executive Vice President, January 10, 2000
- --------------------------------------------- Secretary and Director
F. William Caple
* Chief Financial Officer and January 10, 2000
- --------------------------------------------- Treasurer (Principal Financial
Ronald W. Kaiser and Accounting Officer)
* Director January 10, 2000
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Gabriel A. Battista
* Director January 10, 2000
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John Burton
* Director January 10, 2000
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Joseph R. Chinnici
* Director January 10, 2000
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Geaton A. DeCesaris, Jr.
* Director January 10, 2000
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Donald B. Hebb, Jr.
*By: /s/ F. WILLIAM CAPLE
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F. William Caple
Attorney-in-fact
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EXHIBIT 16.1
[GRANT THORNTON LETTERHEAD]
January 5, 2000
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
RE: OTG Software, Inc.
Ladies and Gentlemen:
We have read the company statements included under the heading, "Change of
Auditors" in the Form S-1 dated September 23, 1999 and we agree with the
statements contained therein.
Very truly yours,
GRANT THORNTON LLP
/s/ GRANT THORNTON LLP
