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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 4, 2000
REGISTRATION NO. 333-34642
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AUTOTRADER.COM, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 7389 58-2534364
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
5775 PEACHTREE DUNWOODY ROAD, SUITE A-200
ATLANTA, GEORGIA 30342
(404)269-8000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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WILLIAM N. TEMPLETON
CHIEF FINANCIAL OFFICER AND VICE PRESIDENT
AUTOTRADER.COM, INC.
5775 PEACHTREE DUNWOODY ROAD, SUITE A-200
ATLANTA, GEORGIA 30342
(404) 843-5000
(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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STUART A. SHELDON KRIS F. HEINZELMAN
JOHN W. MCNAMARA CRAVATH, SWAINE & MOORE
DOW, LOHNES & ALBERTSON, PLLC WORLDWIDE PLAZA
1200 NEW HAMPSHIRE AVENUE, N.W. 825 EIGHTH AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10019
(202) 776-2000 (212) 474-1000
</TABLE>
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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 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, 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 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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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered, other than the
underwriting discounts and commissions. All amounts shown are estimates except
for the SEC registration fee, the NASD filing fee and the Nasdaq National Market
application fee. All of these fees are being paid by AutoTrader.com.
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Registration Fee............................................ $ 26,400
NASD Filing Fee............................................. 10,500
Nasdaq Stock Market Listing Application Fee................. 95,000
Legal Fees and Expenses..................................... 900,000
Accounting Fees and Expenses................................ 600,000
Printing and Engraving Fees................................. 225,000
Transfer Agent and Registrar Fee............................ *
Miscellaneous............................................... *
--------
Total............................................. $ *
========
</TABLE>
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* To be supplied by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law authorizes corporations to limit or
eliminate the personal liability of directors to corporations and their
stockholders for monetary damages for breach of directors' fiduciary duty of
care. The duty of care requires that, when acting on behalf of the corporation,
directors must exercise an informed business judgment based on all material
information reasonably available to them. In the absence of the limitations
authorized by the Delaware statute, directors could be accountable to
corporations and their stockholders for monetary damages for conduct that does
not satisfy their duty of care. Although the statute does not change directors'
duty of care, it enables corporations to limit available relief to equitable
remedies such as injunction or rescission. The certificate of incorporation
limits the liability of AutoTrader.com's directors to AutoTrader.com or its
stockholders to the fullest extent permitted by the Delaware statute.
Specifically, the directors of AutoTrader.com will not be personably liable for
monetary damages for breach of a director's fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to
AutoTrader.com or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law (which relates to the
unlawful payment of a dividend or an unlawful stock purchase or redemption by a
corporation) or (iv) for any transaction from which a director derived an
improper personal benefit. The inclusion of this provision in the certificate of
incorporation may have the effect of reducing the likelihood of derivative
litigation against directors and may discourage or deter stockholders or
management from bringing a lawsuit against directors for breach of their duty of
care, even though such an action, if successful, might otherwise have benefited
AutoTrader.com and its stockholders.
AutoTrader.com has entered into indemnification agreements with each of its
directors. These agreements provide for the indemnification of directors by
AutoTrader.com under certain conditions in connection with actions brought
against a director based on the fact of his or her service as a director of
AutoTrader.com or based on any action taken by him or her as a director. Under
these agreements, a director is indemnified against all expenses, costs,
attorneys' fees, settlements, judgments, fines or penalties incurred in
connection with any action other than an action brought by or on behalf of
AutoTrader.com, as long as the director had acted in good faith and in the best
interests of AutoTrader.com (and in the case
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of a criminal proceeding, as long as the director had no reason to believe that
his or her conduct was unlawful).
In connection with an action by or on behalf of AutoTrader.com, a director
is indemnified against any expenses, costs, attorneys' fees or settlements
(where permitted by law), as long as such director had acted in good faith and
in the best interests of AutoTrader.com. However, the director will not be
entitled to indemnification in such an action if he or she is found to be liable
to the company, unless the court determines that despite this liability, the
director is fairly and reasonably entitled to indemnification under the
circumstances.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In December 1997, AutoConnect, L.L.C. (the predecessor of AutoTrader.com,
LLC) issued to Manheim Auctions, Inc. and ADP, Inc. 810,000 Class A membership
units and 190,000 Class A membership units, respectively, in connection with
AutoConnect, L.L.C.'s formation. The aggregate consideration paid for such
securities was $17,324,757. Such securities were issued pursuant to the
exemption set forth in Section 4(2) of the Securities Act.
In August 1999, AutoConnect, L.L.C. (the predecessor of AutoTrader.com,
LLC) issued 250,000 Class A membership units to each of TPI, Inc. and LTM
Company, L.P. in connection with the closing of the transactions contemplated by
the Contribution Agreement. In consideration for such securities, assets with an
agreed fair market value of $43,333,333 were contributed to AutoConnect, L.L.C.
Such securities were issued pursuant to the exemption set forth in Section 4(2)
of the Securities Act.
In August 1999, AutoConnect, L.L.C. (the predecessor of AutoTrader.com,
LLC) issued 223,602 Class A membership units to ATC Holdings, Inc. in connection
with the closing of the transactions contemplated by a Unit Purchase Agreement.
The consideration paid for such securities was $19,378,881.99. Such securities
were issued pursuant to the exemption set forth in Section 4(2) of the
Securities Act.
In August 1999, AutoConnect, L.L.C. (the predecessor of AutoTrader.com,
LLC) issued 139,752 Class A membership units to KPCB Holdings, Inc. in
connection with the closing of the transactions contemplated by a Unit Purchase
Agreement. The consideration paid for such securities was $12,111,801.24. Such
securities were issued pursuant to the exemption set forth in Section 4(2) of
the Securities Act.
In August 1999, as part of the other transactions occurring at that time
and described above, AutoConnect, L.L.C. changed its name to AutoTrader.com,
LLC.
In December 1999, AutoTrader.com, LLC effected a 14.168-for-1 split of its
outstanding membership units.
In February 2000, AutoTrader.com, LLC issued 7,955,311 membership units to
its members pursuant to the consummation of a capital call. The aggregate
consideration paid for such securities was $48,662,997.83. Such securities were
issued pursuant to the exemption set forth in Section 4(2) of the Securities
Act.
In March 2000, AutoTrader.com, LLC issued 1,173,876 membership units to
eBay, Inc. in connection with the closing of the transactions contemplated by a
Unit Purchase Agreement. The consideration paid for such securities was
$9,237,000. Such securities were issued pursuant to the exemption set forth in
Section 4(2) of the Securities Act.
In March 2000, AutoTrader.com, LLC issued 5,326,544 membership units to its
members pursuant to the consummation of a capital call. The aggregate
consideration paid for such securities was $32,891,000. Such securities were
issued pursuant to the exemption set forth in Section 4(2) of the Securities
Act.
The Registrant issued 100 shares of its common stock to AutoTrader.com, LLC
on April 1, 2000 for an aggregate consideration of $100. The offering and sale
of the shares of common stock were not
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registered under the Securities Act of 1933 because the offering and sale were
made in reliance on the exemption provided by Section 4(2) of the Securities Act
of 1933 and Rule 506 thereunder for transactions by an issuer not involving a
public offering. As a result of a merger between the Registrant and
AutoTrader.com, LLC concurrently with the consummation of the offering to which
this registration statement relates, the holders of the limited liability
company units of AutoTrader.com, LLC will exchange all of their membership units
for the Registrant's Class A and Class B common stock on a one-for-one basis.
For more information, see "Certain Relationships and Related
Transactions -- Reorganization." The offering and sale of the shares of common
stock will not be registered under the Securities Act of 1933 because the
offering and sale will be made in reliance on the exemption provided by Section
4(2) of the Securities Act of 1933 and Rule 506 thereunder for transactions by
an issuer not involving a public offering (with the recipients representing
their intentions to acquire the securities for their own accounts and not with a
view to the distribution thereof and acknowledging that the securities will be
issued in a transaction not registered under the Securities Act of 1933).
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT INDEX
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EXHIBIT
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*1.1 -- Form of Underwriting Agreement
*2.1 -- Form of Agreement and Plan of Merger
*3.1 -- Certificate of Incorporation of AutoTrader.com, Inc.
*3.2 -- Form of Amended and Restated Certificate of Incorporation of
AutoTrader.com, Inc.
*3.3 -- Bylaws of AutoTrader.com, Inc.
*3.4 -- Form of Amended and Restated Bylaws of AutoTrader.com, Inc.
*4.1 -- Specimen Class A Common Stock Certificate
**5.1 -- Opinion of Dow, Lohnes & Albertson, PLLC regarding the
validity of the Class A common stock.
++10.1 -- Interactive Marketing Agreement, dated as of April 12, 1999,
among AutoConnect, L.L.C. n/k/a AutoTrader.com, LLC and
America Online, Inc.
*10.2 -- Contribution Agreement, dated as of August 20, 1999, among
Manheim Auctions, Inc., ADP, Inc., Trader Publishing
Company, AutoConnect, L.L.C. n/k/a AutoTrader.com, LLC, TPI,
Inc. and LTM Company, L.P.
*10.3 -- License Agreement, dated as of August 20, 1999, between
Trader Publishing Company and AutoConnect, L.L.C. n/k/a
AutoTrader.com LLC.
*10.4 -- Data Contribution Agreement, dated as of August 20, 1999,
between Trader Publishing Company and AutoConnect, L.L.C.
n/k/a AutoTrader.com, LLC.
*10.5 -- Data Contribution Agreement, dated as of August 20, 1999,
between AutoConnect, L.L.C. n/k/a AutoTrader.com, LLC and
ADP, Inc.
*10.6 -- Data Contribution Agreement, dated as of August 20, 1999,
between AutoConnect, L.L.C. n/k/a AutoTrader.com, LLC and
Manheim Auctions, Inc.
*10.7 -- Unit Purchase Agreement, dated as of August 20, 1999, among
AutoConnect, L.L.C. n/k/a AutoTrader.com, LLC, Manheim
Auctions, Inc., ADP, Inc. and ATC Holdings, Inc.
*10.8 -- Unit Purchase Agreement, dated as of August 20, 1999, among
AutoConnect, L.L.C. n/k/a AutoTrader.com, LLC, Manheim
Auctions, Inc., ADP, Inc. and KPCB Holdings, Inc.
*10.9 -- Amended and Restated Registration Rights Agreement, dated as
of August 20, 1999, among AutoConnect, L.L.C. n/k/a
AutoTrader.com, LLC, Manheim Auctions, Inc., LTM Company,
L.P., ATC Holdings, Inc., KPCB Holdings, Inc., as nominee
and TPI, Inc.
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EXHIBIT
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*10.10 -- Asset Purchase Agreement, dated as of November 1, 1999,
between AutoTrader.com, LLC and Intellisoft Development
Corporation.
*10.11 -- Web Advertising and Promotion Agreement, dated as of January
18, 2000, between AutoTrader.com, LLC and Greenlight.com,
Inc.
*10.12 -- Marketing Agreement, dated as of March 6, 2000, between
AutoTrader.com, LLC and eBay, Inc.
*10.13 -- Marketing Services Agreement, dated as of March 6, 2000,
between AutoTrader.com, LLC and eBay, Inc.
*10.14 -- Unit Purchase Agreement, dated as of March 6, 2000, between
AutoTrader.com, LLC and eBay, Inc.
*10.15 -- Joinder Agreement, dated as of March 6, 2000, among
AutoTrader.com, LLC, eBay, Inc. and Manheim ATC, Inc.
*10.16 -- AutoTrader.com, Inc. 2000 Long-Term Incentive Plan.
*10.17 -- AutoTrader.com, Inc. 2000 Employee Stock Purchase Plan.
*10.18 -- AutoTrader.com, Inc. Equity Incentive Plan for Non-Employee
Directors.
*10.19 -- Form of Stockholders' Agreement, among AutoTrader.com, Inc.,
Manheim Auctions, Inc., LTM Company, L.P., ATC Holdings,
Inc., KPCB Holdings, Inc., as nominee, and TPI, Inc.
*10.20 -- License Agreement, dated as of March 31, 1991, between TPI
Holdings, Inc. and Trader Publishing Company.
**23.1 -- Consent of Dow, Lohnes & Albertson, PLLC (included in their
opinion filed as Exhibit 5.1).
*23.2 -- Consent and Report on Schedule of Deloitte & Touche LLP.
*23.3 -- Consent of Deloitte & Touche LLP.
*24.1 -- Power of Attorney (set forth on the signature page of this
registration statement).
*27.1 -- Financial Data Schedule (for SEC use only).
</TABLE>
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* Previously filed with the registration statement.
** To be filed by amendment.
++ Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and the omitted portions have been filed separately
with the Securities and Exchange Commission.
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SCHEDULES
V. VALUATION AND QUALIFYING ACCOUNT
SCHEDULE V
AUTOTRADER.COM, LLC
VALUATION AND QUALIFYING ACCOUNT
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BALANCE AT PROVISION BALANCE AT
BEGINNING FOR DOUBTFUL END OF
OF PERIOD ACCOUNTS DEDUCTIONS PERIOD
---------- ------------ ---------- ----------
<S> <C> <C> <C> <C>
Period Ended December 31, 1997
Allowance for doubtful accounts.................. $ -- $ -- $ -- $ --
======== ======== ========= ========
Year Ended December 31, 1998
Allowance for doubtful accounts.................. $ -- $ 7,000 $ -- $ 7,000
======== ======== ========= ========
Year Ended December 31, 1999
Allowance for doubtful accounts.................. $ 7,000 $525,000 $(369,000) $163,000
======== ======== ========= ========
</TABLE>
All other schedules for which provisions are made in the applicable
regulations of the SEC 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 underwriter
at the closing specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
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 of 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 purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as a
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 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 such
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, AutoTrader.com,
Inc. has duly caused this amendment no. 4 to the registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Atlanta, State of Georgia on August 4, 2000.
AUTOTRADER.COM, INC.
By: /s/ VICTOR A. PERRY, III
------------------------------------
Victor A. Perry, III
President and Chief Executive
Officer
AutoTrader.com, Inc., a Delaware corporation, and each person whose
signature appears below constitutes and appoints Victor A. Perry, III and
William N. Templeton, and either of them, with full power to act without the
others, such person's true and lawful attorneys-in-fact, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign this Registration Statement, and any and all
amendments thereto (including, without limitation, post-effective amendments and
any subsequent registration statement filed pursuant to Rule 462(b) or Rule
462(d) under the Securities Act of 1933, as amended), and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform each and every act and thing necessary or desirable to be done in and
about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or either of them, or their substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this amendment
no. 4 to the registration statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated.
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SIGNATURE TITLE DATE
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<C> <S> <C>
/s/ VICTOR A. PERRY, III President and Chief Executive August 4, 2000
----------------------------------------------------- Officer and Director
Victor A. Perry, III
* Vice President, Chief Financial August 4, 2000
----------------------------------------------------- Officer and Principal
William N. Templeton Accounting Officer
* Director August 4, 2000
-----------------------------------------------------
James C. Kennedy
* Director August 4, 2000
-----------------------------------------------------
G. Dennis Berry
* Director August 4, 2000
-----------------------------------------------------
Darryll M. Ceccoli
* Director August 4, 2000
-----------------------------------------------------
David E. Easterly
* Director August 4, 2000
-----------------------------------------------------
Dean H. Eisner
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SIGNATURE TITLE DATE
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<C> <S> <C>
* Director August 4, 2000
-----------------------------------------------------
Robert C. O'Leary
* Director August 4, 2000
-----------------------------------------------------
Allan Stejskal
* Director August 4, 2000
-----------------------------------------------------
Richard F. Barry, III
* Director August 4, 2000
-----------------------------------------------------
Joseph Lacob
</TABLE>
*POWER OF ATTORNEY
Victor A. Perry, III, by signing his name hereto, does sign this document
on behalf of each of the persons indicated above for whom he is attorney-in-fact
pursuant to a power of attorney duly executed by such person and filed with the
SEC.
By: /s/ VICTOR A. PERRY, III
------------------------------------
Victor A. Perry, III
Attorney-in-fact
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