<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 9, 2000
REGISTRATION NO. 333-48516
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
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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<S> <C> <C>
DELAWARE 7372 52-1769077
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
INCORPORATION OR
ORGANIZATION)
</TABLE>
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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)
------------------------------
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)
------------------------------
COPIES TO:
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<S> <C>
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.
11951 FREEDOM DRIVE WASHINGTON, D.C. 20036
RESTON, VA 20190 TELEPHONE: (202) 861-3900
TELEPHONE: (703) 654-7000 TELECOPY: (202) 223-2085
TELECOPY: (703) 654-7100
</TABLE>
------------------------
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. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(b)
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. / /
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. / /
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 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 and the NASD filing fee.
<TABLE>
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SEC registration fee........................................ $ 36,290
NASD filing fee............................................. 14,246
Printing and engraving expenses............................. 200,000
Legal fees and expenses..................................... 300,000
Accounting fees and expenses................................ 80,000
Blue Sky fees and expenses (including legal fees)........... 10,000
Transfer agent and registrar fees and expenses.............. 20,000
Miscellaneous............................................... 89,464
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Total................................................... $750,000
========
</TABLE>
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 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 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)
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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 Amended and Restated Certificate of Incorporation,
Amended and Restated By-Laws and Form of Indemnification Agreement incorporated
by reference as Exhibits 3.1, 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 "Securities 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
Since September 1997, 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 June 8, 1998, in connection with the Registrant's reincorporation
into Delaware, the Registrant issued an aggregate of 26,207,606 shares of
common stock to Richard A. Kay, F. William Caple, Eugene Sandler and
Alexandra Kay, the four stockholders of the Registrant's predecessor
Maryland corporation in exchange for all the outstanding common stock of the
Registrant's predecessor Maryland corporation. This transaction was exempt
from registration under Section 4(2) of the Securities Act.
2. On June 9, 1998, the Registrant issued convertible subordinated notes
in the aggregate principal amount of $7,636,364 to ABS Capital Partners II,
L.P., Greylock IX Limited Partnership and Michael P. Murray. 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 the Registrant's initial public offering, the principal balance of the
convertible subordinated notes converted automatically into 4,161,506 shares
of the Registrant's common stock and the interest thereon was forgiven. This
transaction was exempt from registration under Section 4(2) of the
Securities Act.
3. On December 1, 1998, the Registrant's predecessor corporation issued
a warrant to purchase 30,000 shares of common stock to Galina Schiff in
exchange for an executed release agreement. The Registrant's predecessor
corporation did not obtain a valuation for the release agreement and the
Registrant cannot estimate the value of the release agreement. This
transaction was exempt from registration under Section 4(2) of the
Securities Act.
4. On December 22, 1998, the Registrant issued an aggregate of 476,190
shares of common stock to five employees, Scott R. Nickel, Mark L. Hanson,
Stewart Nickel, Paul Matsko and Robert Alan Depelteau, for an aggregate
purchase price of $873,809 pursuant to restricted stock agreements under the
Registrant's 1998 Stock Incentive Plan. The employees each issued promissory
notes to the Registrant for their respective shares. This transaction was
exempt from registration under Rule 701 of the Securities Act.
5. On April 25, 2000, the Registrant issued an aggregate of 160,000
shares of common stock and $1.75 million cash to seven individuals as
payment for all the outstanding stock of xVault, Inc.
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This transaction was structured as a reverse triangular merger. This
transaction was exempt from registration under Rule 506 of the Securities
Act.
(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 April 21, 2000, the date
the Registrant filed the Registration Statement on Form S-8 registering the
shares issuable under the Registrant's stock plans, 11,700 options to purchase
shares of common stock had been exercised, options to purchase 3,930,206 shares
of common stock were outstanding and 476,190 shares of restricted stock had been
granted under the 1998 Stock Incentive Plan. The Registrant's 2000 Stock
Incentive Plan was adopted by the Board of Directors and approved by the
Registrant's stockholders in February 2000. As of April 21, 2000, no options to
purchase shares of common stock had been exercised and options to purchase
61,000 shares of common stock were outstanding under the 2000 Stock Incentive
Plan.
No underwriters were involved in the foregoing sales of securities. 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:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
--------------------- -----------
<C> <S>
1.1 Form of Underwriting Agreement
3.1** Amended and Restated Certificate of Incorporation of the
Registrant
3.2 [Intentionally deleted]
3.3 [Intentionally deleted]
3.4** Amended and Restated By-Laws of the Registrant
4.1** Specimen common stock certificate
4.2** See Exhibits 3.1 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, as amended
10.5** Lease for 6701 Democracy Boulevard, Suite 805, Bethesda,
Maryland 20817, as amended
10.6** Form of Indemnification Agreement executed with directors
and executive officers
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
10.10** Form of Subchapter S Tax Indemnification Agreement executed
with all existing stockholders
10.11** Registration Rights Agreement dated as of June 9, 1998
10.12**** Agreement and Plan of Merger by and among OTG Software,
Inc., OTG Merger Corp. and xVault, Inc., dated April 17,
2000.
10.13***** Lease for facilities at 2600 Tower Oaks Boulevard in
Rockville, Maryland.
10.14+ Security Agreement dated as of July 22, 1999 by and among
Online Technologies Group, Inc., OTG Software, Inc. and
PNC Bank, National Association as amended by the
Affirmation and Partial Release dated as of October 30,
2000, by and between OTG Software, Inc. and PNC Bank,
National Association
10.15+ Amended and Restated Loan Agreement dated as of October 30,
2000, by and betwen OTG Software and PNC Bank, National
Association, and a related Amended and Restated Revolving
Credit Note
16.1** Letter from Grant Thornton LLP
21.1+ Subsidiaries of the Registrant
23.1+ Consent of KPMG LLP
</TABLE>
II-3
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23.2+ Consent of KPMG LLP
23.3 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on page II-5)
</TABLE>
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** Incorporated by reference to the exhibit of the same number
filed with the Registrant's Registration Statement on Form
S-1 (No. 333-93581).
*** Incorporated by reference to Exhibit 10.3 filed with the
Registrant's Quarterly Report on Form 10-Q for the three
month period ended March 31, 2000 (No. 000-29809).
**** Incorporated by reference to Exhibit 2.1 filed with the
Registrant's Current Report on Form 8-K, dated May 9, 2000
(No. 000-29809).
***** Incorporated by reference to Exhibit No. 10.6 filed with the
Registrant's Quarterly Report on Form 10-Q for the three
month period ended June 30, 2000 (No. 000-29809).
</TABLE>
+ 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
Insofar as indemnification for liabilities arising under the Securities 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
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 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
Securities 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 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 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 of 1933, the Registrant
has duly caused this Amendment to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Bethesda, Maryland, on
this 9th day of November, 2000.
<TABLE>
<CAPTION>
OTG SOFTWARE, INC.
<S> <C> <C>
By: /s/ RICHARD A. KAY
----------------------------------------
Richard A. Kay
PRESIDENT, CHIEF EXECUTIVE OFFICER AND
CHAIRMAN OF THE BOARD OF DIRECTORS
</TABLE>
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers, directors and authorized representatives of
OTG Software, Inc. hereby severally constitute and appoint Richard A. Kay, F.
William Caple, Ronald W. Kaiser and Brent B. Siler, and each of them singly, our
true and lawful attorneys with full power to them, and each of them singly, with
full powers of substitution and resubstitution, to sign for us and in our names
in the capacities indicated below, the Registration Statement on Form S-1 filed
herewith and any and all pre-effective and post-effective amendments to said
Registration Statement, and any subsequent Registration Statement for the same
offering which may be filed under Rule 462(b), and generally to do all such
things in our names and on our behalf in our capacities as officers and
directors to enable OTG Software, Inc. to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, or their substitute or
substitutes, to said Registration Statement and any and all amendments thereto
or to any subsequent Registration Statement for the same offering which may be
filed under Rule 462(b).
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
President, Chief Executive Officer
/s/ RICHARD A. KAY and Chairman of the Board of
----------------------------------- Directors (Principal Executive November 9, 2000
Richard A. Kay Officer)
*
----------------------------------- Executive Vice President, Secretary November 9, 2000
F. William Caple and Director
* Chief Financial Officer and
----------------------------------- Treasurer (Principal Financial and November 9, 2000
Ronald W. Kaiser Accounting Officer)
*
----------------------------------- Director November 9, 2000
Gabriel A. Battista
*
----------------------------------- Director November 9, 2000
John Burton
*
----------------------------------- Director November 9, 2000
Joseph R. Chinnici
*
----------------------------------- Director November 9, 2000
Geaton A. DeCesaris, Jr.
*
----------------------------------- Director November 9, 2000
Donald B. Hebb, Jr.
</TABLE>
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<S> <C> <C> <C>
* /s/ RICHARD A. KAY
--------------------------------------
Richard A. Kay, ATTORNEY-IN-FACT
</TABLE>
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