<PAGE>
As filed with the Securities and Exchange Commission on January 9, 2001.
Registration No. 333-41330
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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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Motive Communications, Inc.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<CAPTION>
Delaware 7372 74-2834515
<S> <C> <C>
(State or Other
Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or
Organization) Classification Code Number) Identification Number)
</TABLE>
12515 Research Boulevard, Building No. 5
Austin, Texas 78759
(512) 339-8335
(Address, including zip code, and telephone number, including area code, of the
registrant's principal executive offices)
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SCOTT L. HARMON
President and Chief Executive Officer
Motive Communications, Inc.
12515 Research Boulevard, Building No. 5
Austin, Texas 78759
(512) 339-8335
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
<TABLE>
<CAPTION>
Anthony M. Allen Alan Dean
Catherine L. Dawson Robin F. Schuh
Jennifer Y. Harper Bjorn Bjerke
<S> <C>
Gunderson Dettmer Stough Davis Polk & Wardwell
Villeneuve Franklin & Hachigian, LLP 450 Lexington Avenue
2700 Via Fortuna, Suite 300 New York, New York 10017
Austin, Texas 78746 (212) 450-4000
(512) 732-8400
</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, as amended, 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 this 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 that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to such Section 8(a), may determine.
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<PAGE>
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 the Company in connection
with the sale of common stock being registered. All amounts are estimates
except the SEC registration fee and the NASD filing fees.
<TABLE>
<S> <C>
SEC Registration fee.............................................. $ 18,216
NASD fee.......................................................... 7,400
Nasdaq National Market initial listing fee........................ 5,000
Printing and engraving............................................ 175,000
Legal fees and expenses of the Company............................ 600,000
Accounting fees and expenses...................................... 500,000
Directors and officers insurance.................................. 600,000
Blue sky fees and expenses........................................ 25,000
Transfer agent fees............................................... 3,500
Miscellaneous..................................................... 250,884
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Total $2,185,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933
(the "Act"). Article 7.6 of the Company's by-laws provides for mandatory
indemnification of its directors and officers and permissible indemnification
of agents to the maximum extent permitted by the Delaware General Corporation
Law. The Company's amended and restated certificate of incorporation provides
that, pursuant to Delaware law, its directors shall not be liable for monetary
damages for breach of the directors' fiduciary duty as directors to the
Company and its stockholders. This provision in the amended and restated
certificate of incorporation does not eliminate the directors' fiduciary duty,
and in appropriate circumstances equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware law.
In addition, each director will continue to be subject to liability for breach
of the director's duty of loyalty to the Company for acts or omissions 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
unlawful under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Company has entered into
Indemnification Agreements with its officers and directors, a form of which is
attached as Exhibit 10.1 hereto and incorporated herein by reference. The
Indemnification Agreements provide the Company's officers and directors with
further indemnification to the maximum extent permitted by the Delaware
General Corporation Law. The Company maintains liability insurance for its
directors and officers. Reference is also made to Section 9 of the
underwriting agreement contained in Exhibit 1.1 to be filed by amendment,
indemnifying officers and directors of the Company against certain
liabilities, and Section 1.10 of the Third Amended and Restated Investors'
Rights Agreement contained in Exhibit 4.1 hereto, indemnifying certain of our
stockholders, including controlling stockholders, against certain liabilities.
Item 15. Recent Sales of Unregistered Securities
Since inception, we have issued and sold the following securities:
1. From inception through September 30, 2000, the Company granted stock
options to purchase 26,207,533 shares of Common Stock at exercise prices
ranging from $0.0007 to $11.00 per share to employees, consultants and
directors pursuant to its 1997 Stock Option/Stock Issuance Plan. In
addition, the Company assumed 13,778 outstanding options at exercise
prices ranging from $0.5102 to $1.3426 per share in conjunction with the
Ventix acquisition.
II-1
<PAGE>
2. From inception through September 30, 2000, the Company issued and sold
an aggregate of 20,681,521 shares of its Common Stock to employees,
consultants and directors for an aggregate cash consideration of
approximately $5,109,995 pursuant to exercises of options granted under
its 1997 Stock Option/Stock Issuance Plan. In addition, the Company
issued and sold an aggregate of 3,351 shares of its Common Stock to
employees for an aggregate cash consideration of approximately $2,500
pursuant to exercises of options assumed in conjunction with the Ventix
acquisition.
3. In June 1997, the Company issued and sold 7,925,472 (post-split) shares
of its Series A Preferred Stock to a total of 8 accredited investors for
an aggregate purchase price of $4,749,999.
4. In July 1998, the Company issued and sold 3,206,493 (post-split) shares
of its Series B Preferred Stock to a total of 14 accredited investors
for an aggregate purchase price of approximately $10,047,002.
5. In June 1999, the Company issued and sold 2,486,639 (post-split) shares
of its Series C Preferred Stock to a total of 11 accredited investors
for an aggregate purchase price of approximately $16,444,949.
6. In January 2000, the Company issued 1,388,356 shares of Common Stock and
2,066,309 shares of Series D-1 Preferred Stock, 2,524,458 shares of
Series D-2 Preferred Stock and 186,210 shares of Series D-3 Preferred
Stock pursuant to the Agreement and Plan of Reorganization by and
between the Registrant, Merger Sub and Ventix, dated January 28, 2000
for an aggregate value of approximately $28,700,000.
7. In April 2000, the Company issued and sold 1,666,667 shares of its
Common Stock to one accredited investor for an aggregate purchase price
of approximately $11,016,669.
Two of the Company's directors, Eric L. Jones and John D. Thornton, each
purchased shares of Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock. In connection with the Ventix acquisition, Mr.
Thornton was issued shares of Series D-1 Preferred Stock. Two of our officers,
Patrick D. Motola and Douglas F. McNary, purchased shares of Series B
Preferred Stock.
The issuances described in Items 15(1) and (2) were deemed exempt from
registration under the Securities Act in reliance on Rule 701 promulgated
under the Securities Act or Section 4(2) of the Securities Act. The issuances
of the securities described in Items 15(3)-(5) and (7) were deemed to be
exempt from registration under the Securities Act in reliance on Section 4(2)
of such Act and Regulation D promulgated thereunder. The issuance of
securities described in Item 15(6) were deemed to be exempt from registration
under the Securities Act in reliance on Section 4(2) of such Act as a
transaction by an issuer not involving a public offering. In the transaction
described in Item 15(6), there was no general solicitation and the issuance
was limited to the holders of Ventix shares. In addition, the recipients of
securities in each such transaction above represented their intentions 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 issued in such transactions. All recipients
had adequate access, through their relationships with the Company, to
information about the Company.
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a)Exhibits
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<CAPTION>
Exhibit
No. Description
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<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Amended and Restated Certificate of Incorporation of the
Registrant, as amended to date.
3.2* Form of Amended and Restated Certificate of Incorporation of the
Registrant to be filed after the closing of the offering made
pursuant to this Registration Statement.
3.3* Amended and Restated By-laws of the Registrant, as amended to date.
3.4* Form of Amended and Restated By-laws of the Registrant to be
effective upon the closing of the offering made pursuant to their
Registration Statement.
4.1* Third Amended and Restated Investors' Rights Agreement, dated
January 28, 2000, among the Registrant and the stockholders named
therein, as amended.
4.2* Common Stock Purchase Agreement, dated April 7, 2000, between the
Registrant and Peregrine Systems, Inc.
4.3* Specimen Certificate of the Registrant's common stock.
5.1** Opinion of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP, counsel to the Registrant.
10.1* Form of Indemnification Agreement entered into between the
Registrant and its directors and executive officers.
10.2* 1997 Stock Option/Stock Issuance Plan.
10.3* 2000 Equity Incentive Plan.
10.4* 2000 Employee Stock Purchase Plan.
10.5* Security and Loan Agreement between the Registrant and Imperial
Bank, dated May 19, 1999.
10.6* Lease Agreement between the Registrant and Huskers-Research, Ltd.,
dated March 22, 2000.
10.7* Lease Agreement between the Registrant and Waterford IV HP, Ltd.,
dated October 22, 1999.
+10.8 Distribution Agreement between the Registrant and Peregrine
Systems, Inc. dated April 13, 2000.
+10.9 Software License Agreement between the Registrant and Dell
Products, L.P., dated December 2, 1998.
+10.10 Software License Agreement between the Registrant and Compaq
Computer Corporation, dated April 30, 1999.
+10.11 License Agreement for OEM Customers between the Registrant and
Gateway Companies, Inc. dated September 13, 1999.
+10.12 Software License Agreement between the Registrant and Hewlett-
Packard Company dated December 13, 2000.
10.13* Offer Letter from the Registrant to Mr. Patrick Motola dated April
22, 1998.
10.14* Offer Letter from the Registrant to Mr. Douglas McNary dated
February 13, 1998.
16.1* Letter Regarding Change in Independent Auditors.
21.1* Subsidiaries of the Registrant.
23.1* Consent of Ernst & Young LLP, independent auditors.
23.2** Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP, counsel to the Registrant. Reference is made to
Exhibit 5.1.
23.3* Consent of PricewaterhouseCoopers LLP.
24.1* Power of Attorney. Reference is made to page II-5.
27.1* Financial Data Schedule.
99.1* Consent of International Data Corporation.
</TABLE>
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* Previously filed.
** To be supplied by amendment.
+ Certain portions of this exhibit have been omitted pursuant to a request for
confidential treatment.
II-3
<PAGE>
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 for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the Delaware General Corporation Law, the Amended and Restated
Certificate of Incorporation or the By-laws of the Registrant, Indemnification
Agreements entered into between the Registrant and its officers and directors,
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 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 Registrant hereby undertakes that:
(1) For purposes 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 the 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Austin, State of Texas, on this 9th day of January, 2001.
MOTIVE COMMUNICATIONS, INC.
By: /s/ Scott L. Harmon
____________________________________
Scott L. Harmon
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 5 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Scott L. Harmon President, Chief Executive Officer January 9,
_____________________________________ and Director (Principal Executive 2001
Scott L. Harmon Officer)
/s/ R. Logan Wray* Chief Financial Officer (Principal January 9,
_____________________________________ Financial and Accounting Officer) 2001
R. Logan Wray
/s/ Eric L. Jones* Director January 9,
_____________________________________ 2001
Eric L. Jones
/s/ Michael J. Maples, Sr.* Director January 9,
_____________________________________ 2001
Michael J. Maples, Sr.
/s/ Ross B. Garber* Director January 9,
_____________________________________ 2001
Ross B. Garber
/s/ John D. Thornton* Director January 9,
_____________________________________ 2001
John D. Thornton
/s/ David Sikora* Director January 9,
_____________________________________ 2001
David Sikora
</TABLE>
*By: /s/ Scott L. Harmon
____________________________
Scott L. Harmon
Attorney-in-Fact
Pursuant to Power of Attorney
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit No. Exhibit Page
----------- --------------------------------------------------- ------------
<C> <S> <C>
1.1* Form of Underwriting Agreement.
3.1* Amended and Restated Certificate of Incorporation
of the Registrant, as amended to date.
3.2* Form of Amended and Restated Certificate of
Incorporation of the Registrant to be filed after
the closing of the offering made pursuant to this
Registration Statement.
3.3* Amended and Restated By-laws of the Registrant, as
amended to date.
3.4* Form of Amended and Restated By-laws of the
Registrant to be effective upon the closing of the
offering made pursuant to their Registration
Statement.
4.1* Third Amended and Restated Investors' Rights
Agreement, dated January 28, 2000, among the
Registrant and the stockholders named therein, as
amended.
4.2* Common Stock Purchase Agreement, dated April 7,
2000, between the Registrant and
Peregrine Systems, Inc.
4.3* Specimen Certificate of the Registrant's common
stock.
5.1** Opinion of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP, counsel to the
Registrant.
10.1* Form of Indemnification Agreement entered into
between the Registrant and its directors and
executive officers.
10.2* 1997 Stock Option/Stock Issuance Plan.
10.3* 2000 Equity Incentive Plan.
10.4* 2000 Employee Stock Purchase Plan.
10.5* Security and Loan Agreement between the Registrant
and Imperial Bank, dated May 19, 1999.
10.6* Lease Agreement between the Registrant and Huskers-
Research, Ltd., dated March 22, 2000.
10.7* Lease Agreement between the Registrant and
Waterford IV HP, Ltd., dated October 22, 1999.
+10.8 Distribution Agreement between the Registrant and
Peregrine Systems, Inc. dated April 13, 2000.
+10.9 Software License Agreement between the Registrant
and Dell Products, L.P., dated December 2, 1998.
+10.10 Software License Agreement between the Registrant
and Compaq Computer Corporation, dated April 30,
1999.
+10.11 License Agreement for OEM Customers between the
Registrant and Gateway Companies, Inc. dated
September 13, 1999.
+10.12 Software License Agreement between the Registrant
and Hewlett-Packard Company dated December 13,
2000.
10.13* Offer Letter from the Registrant to Mr. Patrick
Motola dated April 22, 1998.
10.14* Offer Letter from the Registrant to Mr. Douglas
McNary dated February 13, 1998.
16.1* Letter Regarding Change in Independent Auditors.
21.1* Subsidiaries of the Registrant.
23.1* Consent of Ernst & Young LLP, independent auditors.
23.2** Consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP, counsel to the
Registrant. Reference is made to Exhibit 5.1.
23.3* Consent of PricewaterhouseCoopers LLP.
24.1* Power of Attorney. Reference is made to page II-5.
27.1* Financial Data Schedule.
99.1* Consent of International Data Corporation.
</TABLE>
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* Previously filed.
** To be supplied by amendment.
+ Certain portions of this exhibit have been omitted pursuant to a request for
confidential treatment.
