Attached files
file | filename |
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EX-1.1 - EX-1.1 - BROADSOFT, INC. | w80714a2exv1w1.htm |
EX-5.1 - EX-5.1 - BROADSOFT, INC. | w80714a2exv5w1.htm |
EX-23.1 - EX-23.1 - BROADSOFT, INC. | w80714a2exv23w1.htm |
EX-23.2 - EX-23.2 - BROADSOFT, INC. | w80714a2exv23w2.htm |
As filed with
the Securities and Exchange Commission on December 15,
2010
Registration
No. 333-170978
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Pre-effective Amendment
No. 2
to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
BroadSoft, Inc.
(Exact name of registrant as
specified in its charter)
Delaware | 7372 | 52-2130962 | ||
(State or other jurisdiction
of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
9737
Washingtonian Boulevard,
Suite 350
Gaithersburg, Maryland 20878
(301) 977-9440
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Suite 350
Gaithersburg, Maryland 20878
(301) 977-9440
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Michael
Tessler
President and Chief Executive Officer
BroadSoft, Inc.
9737 Washingtonian Boulevard,
Suite 350
President and Chief Executive Officer
BroadSoft, Inc.
9737 Washingtonian Boulevard,
Suite 350
Gaithersburg,
Maryland 20878
(301) 977-9440
(Name, address, including zip code, and telephone number, including area code, of agent for service)
(301) 977-9440
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Mark D. Spoto
Darren K. DeStefano Christina L. Novak Cooley LLP One Freedom Square Reston Town Center 11951 Freedom Drive Reston, Virginia 20190 (703) 456-8000 |
Mary Ellen Seravalli, Esq. Vice President and General Counsel BroadSoft, Inc. 9737 Washingtonian Boulevard, Suite 350 Gaithersburg, Maryland 20878 (301) 977-9440 |
Jorge A. del Calvo, Esq. Craig E. Chason, Esq. Matthew B. Swartz, Esq. Pillsbury Winthrop Shaw Pittman LLP 1650 Tysons Boulevard Suite 1400 McLean, Virginia 22102 (703) 770-7900 |
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. o
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. o
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. o
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. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
Large accelerated
filer o
|
Accelerated filer o |
Non-accelerated
filer þ (Do not check if a smaller reporting company) |
Smaller reporting company o |
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, as amended, or until the
Registration Statement shall become effective on such date as
the Commission, acting pursuant to said Section 8(a), may
determine.
Explanatory
Note
This Pre-effective Amendment No. 2 to the Registration
Statement on
Form S-1
(File
No. 333-170978)
is being filed solely to add certain exhibits to the
registration statement. Accordingly, a preliminary prospectus
has been omitted.
PART II
INFORMATION NOT
REQUIRED IN PROSPECTUS
ITEM 13. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION |
The following table sets forth all expenses, other than the
underwriting discounts and commissions, payable by us in
connection with the sale of the common stock being registered.
All the amounts shown are estimates except the SEC registration
fee and the FINRA filing fee.
SEC registration fee
|
$ | 10,474 | ||
FINRA filing fee
|
15,189 | |||
Printing and engraving
|
125,000 | |||
Legal fees and expenses(1)
|
393,000 | |||
Accounting fees and expenses
|
120,000 | |||
Transfer agent and registrar fees(2)
|
10,000 | |||
Miscellaneous fees and expenses
|
1,337 | |||
Total
|
$ | 675,000 | ||
(1) | Approximately $40,800 of this amount will be paid by certain selling stockholders. |
(2) | Approximately $4,200 of this amount will be paid by certain selling stockholders. |
ITEM 14. | INDEMNIFICATION OF DIRECTORS AND OFFICERS |
Section 102 of the Delaware General Corporation Law permits
a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director,
except where the director breached his duty of loyalty, failed
to act in good faith, engaged in intentional misconduct or
knowingly violated a law, authorized the payment of a dividend
or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit.
Section 145 of the Delaware General Corporation Law
provides that a corporation has the power to indemnify a
director, officer, employee or agent of the corporation and
certain other persons serving at the request of the corporation
in related capacities against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by the person in
connection with an action, suit or proceeding to which he is or
is threatened to be made a party by reason of such position, if
such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, in any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, except
that, in the case of actions brought by or in the right of the
corporation, no indemnification shall be made with respect to
any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or other adjudicating
court determines that, despite the adjudication of liability but
in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem
proper.
As permitted by the Delaware General Corporation Law, our
amended and restated certificate of incorporation and bylaws
provide that: (i) we are required to indemnify our
directors to the fullest extent permitted by the Delaware
General Corporation Law; (ii) we may, in our discretion,
indemnify our officers, employees and agents as set forth in the
Delaware General Corporation Law; (iii) we are required,
upon satisfaction of certain conditions, to advance all expenses
incurred by our directors in connection with certain legal
proceedings; (iv) the rights conferred in the bylaws are
not exclusive; and (v) we are authorized to enter into
indemnification agreements with our directors, officers,
employees and agents.
We have entered into agreements with our directors and executive
officers that require us to indemnify such persons against
expenses, judgments, fines, settlements and other amounts that
any
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such person becomes legally obligated to pay (including with
respect to a derivative action) in connection with any
proceeding, whether actual or threatened, to which such person
may be made a party by reason of the fact that such person is or
was a director or officer of us or any of our affiliates,
provided such person acted in good faith and in a manner such
person reasonably believed to be in, or not opposed to, our best
interests. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for
indemnification thereunder. At present, no litigation or
proceeding is pending that involves any of our directors or
officers regarding which indemnification is sought, nor are we
aware of any threatened litigation that may result in claims for
indemnification.
We maintain a directors and officers liability
insurance policy. The policy insures directors and officers
against unindemnified losses arising from certain wrongful acts
in their capacities as directors and officers and reimburses us
for those losses for which we have lawfully indemnified the
directors and officers. The policy contains various exclusions.
In addition, the underwriting agreement filed as
Exhibit 1.1 to this Registration Statement provides for
indemnification by the underwriters of us and our officers and
directors for certain liabilities arising under the Securities
Act, or otherwise.
ITEM 15. | RECENT SALES OF UNREGISTERED SECURITIES |
Since January 1, 2007, we have made sales of the following
unregistered securities (share amounts and per share amounts
have been retroactively adjusted to give effect to a 6-for-1
reverse stock split effected on June 14, 2010):
(1) Between January 1, 2007 and June 28, 2010, we
granted stock options under our 1999 Stock Incentive Plan and
2009 Equity Incentive Plan to purchase an aggregate of
4,194,465 shares of our common stock at exercise prices
ranging between $2.40 and $12.42 to a total of
511 employees, directors and consultants. Of these, stock
options to purchase an aggregate of 1,781,034 shares have
been cancelled without being exercised, 79,406 have been
exercised and 2,334,025 remain outstanding.
(2) Since January 1, 2007, we issued and sold an
aggregate of 396,085 shares of our common stock to
employees, directors and consultants at exercise prices ranging
between $0.78 and $9.36 upon the exercise of stock options
granted under our 1999 Stock Incentive Plan and 2009 Equity
Incentive Plan. Of these, 938 shares have been repurchased
and 395,147 remain outstanding.
(3) In August 2007, we issued an aggregate of
55,555 shares of restricted common stock under our 1999
Stock Incentive Plan to one of our executive officers.
(4) In April 2008, we issued an aggregate of 3,666
cash-settled stock appreciation rights, or SARs, under our 1999
Stock Incentive Plan to three consultants at a base price of
$8.58. All of the cash-settled SARs have expired without being
settled.
(5) Between April 2009 and June 2010, we issued restricted
stock units under our 2009 Equity Incentive Plan covering the
right to receive an aggregate of 467,884 shares of our
common stock to certain of our employees and directors. Of
these, restricted stock units covering the right to receive an
aggregate of 7,915 shares have been settled through the
issuance of common stock on vesting and restricted stock units
covering the right to receive an aggregate of
459,969 shares cancelled without being settled.
(6) In June 2009, as part of a stock option exchange
program, we issued stock options under our 2009 Equity Incentive
Plan to purchase an aggregate of 1,821,068 shares of our
common stock at an exercise price of $2.40 per share to a total
of 200 employees, directors and a consultant, in exchange
for the cancellation by such parties of stock options to
purchase an identical number of shares of our common stock that
were previously outstanding under our
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1999 Stock Incentive Plan. Of these, stock options to purchase
an aggregate of 60,384 shares have been cancelled without
being exercised.
(7) In June 2007, we issued an aggregate of
11,000 shares of our
Series B-1
redeemable convertible preferred stock to seven accredited
investors at a per share price of $27.2724, for aggregate
consideration of approximately $300,000, pursuant to the
exercise of warrants previously issued.
(8) In June 2007, we issued an aggregate of
804,569 shares of our Series D redeemable convertible
preferred stock to two accredited investors at a per share price
of $12.429, for aggregate consideration of approximately
$10.0 million.
(9) In September 2008, we issued a warrant to purchase
116,551 shares of our common stock at an exercise price of
$8.58 per share to one accredited investor. The warrant was
issued in conjunction with the establishment of a credit
facility with a commercial lender. This warrant was net
exercised, for no additional consideration, in December 2010 for
a total of 76,195 shares of common stock, pursuant to an
exemption from registration under the Securities Act in reliance
upon Section 3(a)(9) of the Securities Act.
(10) In December 2008, we issued an aggregate of
416,656 shares of our Series E redeemable convertible
preferred stock to 20 accredited investors in connection with
our acquisition of Sylantro Systems Corporation.
(11) In October 2009, we issued an aggregate of
249,994 shares of our
Series E-1
redeemable convertible preferred stock to 17 accredited
investors in connection with our acquisition of Packet Island,
Inc.
(12) In June 2010, we issued 25,181 shares of common
stock at a per share price of $3.97, for aggregate consideration
of approximately $100,000, upon the exercise of two previously
issued warrants.
(13) In June 2010, we issued 11,236 shares of common
stock, for no additional consideration, upon the net exercise of
a previously issued warrant to purchase 20,774 shares at an
exercise price of $3.97 per share, pursuant to an exemption from
registration under the Securities Act in reliance upon
Section 3(a)(9) of the Securities Act.
Unless otherwise stated, the sales of the above securities were
deemed to be exempt from registration under the Securities Act
in reliance upon Section 4(2) of the Securities Act or
Regulation D promulgated thereunder, or Rule 701
promulgated under Section 3(b) of the Securities Act as
transactions by an issuer not involving any public offering or
pursuant to benefit plans and contracts relating to compensation
as provided under Rule 701. The recipients of the
securities in each of these transactions 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 placed upon the stock
certificates issued in these transactions.
II-3
ITEM 16. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULE |
(a) Exhibits.
The following exhibits are included herein or incorporated
herein by reference:
Exhibit |
||||
Number
|
Description of Document
|
|||
1 | .1 | Form of Underwriting Agreement. | ||
2 | .1 (1) | Asset Purchase Agreement by and among the Registrant, BroadSoft M6, LLC and GENBAND Inc., dated as of August 14, 2008. | ||
2 | .2 (2) | Amendment to Asset Purchase Agreement and Disclosure Schedule by and among the Registrant, BroadSoft M6, LLC and GENBAND Inc., dated as of August 27, 2008. | ||
2 | .3 (3) | Agreement and Plan of Merger and Reorganization by and among the Registrant, BroadSoft Sylantro, Inc., Sylantro Systems Corporation and Shareholder Representative Services LLC, dated as of December 8, 2008. | ||
2 | .4 (4) | Asset Purchase Agreement by and between Casabi, Inc. and BroadSoft Casabi, LLC, dated as of October 12, 2010. | ||
3 | .1 (5) | Amended and Restated Certificate of Incorporation of the Registrant. | ||
3 | .2 (6) | Amended and Restated Bylaws of the Registrant. | ||
4 | .1 (7) | Specimen Stock Certificate evidencing shares of common stock. | ||
4 | .3 (8) | Fourth Amended and Restated Registration Rights Agreement, dated as of June 26, 2007. | ||
4 | .4 (9) | First Amendment to Fourth Amended and Restated Registration Rights Agreement, dated as of November 25, 2008. | ||
4 | .5 (10) | Second Amendment to Fourth Amended and Restated Registration Rights Agreement, dated as of December 23, 2008. | ||
4 | .6 (11) | Third Amendment to Fourth Amended and Restated Registration Rights Agreement, dated as of October 19, 2009. | ||
4 | .7 (12) | Fourth Amendment to Fourth Amended and Restated Registration Rights Agreement, dated as of March 26, 2010. | ||
5 | .1 | Opinion of Cooley LLP regarding legality. | ||
10 | .1 (13) | BroadSoft, Inc. 1999 Stock Incentive Plan, as amended. | ||
10 | .2 (14) | Form of Stock Option Grant Agreement for BroadSoft, Inc. 1999 Stock Incentive Plan. | ||
10 | .3 (15) | Form of Common Stock Purchase Agreement and Stock Restriction Agreement for BroadSoft, Inc. 1999 Stock Incentive Plan. | ||
10 | .4 (16) | Stock Restriction Agreement by and between James A. Tholen and the Registrant, dated as of August 30, 2007. | ||
10 | .5 (17) | BroadSoft, Inc. Amended and Restated 2009 Equity Incentive Plan. | ||
10 | .6 (18) | Form of Stock Option Agreement for BroadSoft, Inc. Amended and Restated 2009 Equity Incentive Plan. | ||
10 | .7 (19) | Form of Restricted Stock Unit Award Agreement for BroadSoft, Inc. Amended and Restated 2009 Equity Incentive Plan. | ||
10 | .8 (20) | Form of Indemnity Agreement entered into between the Registrant and certain of its directors and its executive officers. | ||
10 | .9 (21) | Form of Indemnity Agreement entered into between the Registrant and certain of its directors. | ||
10 | .10 (22) | Form of Executive Change in Control Severance Benefits Agreement entered into between the Registrant and its executive officers. |
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Exhibit |
||||
Number
|
Description of Document
|
|||
10 | .11 (23) | Loan and Security Agreement by and among ORIX Venture Finance LLC, the Registrant, BroadSoft International, Inc. and BroadSoft M6, LLC, dated as of September 26, 2008. | ||
10 | .12 (24) | Consent and Amendment No. 1 to Loan and Security Agreement by and among ORIX Venture Finance LLC, the Registrant, BroadSoft International, Inc., BroadSoft M6, LLC and BroadSoft Sylantro, Inc., dated as of December 23, 2008. | ||
10 | .13 (25) | Amendment No. 2 to Loan and Security Agreement by and among ORIX Venture Finance LLC, the Registrant, BroadSoft International, Inc., BroadSoft M6, LLC and BroadSoft Sylantro, Inc., dated as of June 30, 2009. | ||
10 | .14 (26) | Consent and Amendment No. 3 to Loan and Security Agreement by and among ORIX Venture Finance LLC, the Registrant, BroadSoft International, Inc., BroadSoft M6, LLC, BroadSoft Sylantro, Inc. and BroadSoft PacketSmart, Inc., dated as of October 15, 2009. | ||
10 | .15 (27) | Amendment No. 4 to Loan and Security Agreement, by and among the Registrant, BroadSoft International, Inc., BroadSoft M6, LLC, BroadSoft Sylantro, Inc., BroadSoft PacketSmart, Inc. and ORIX Venture Finance LLC, dated as of April 1, 2010. | ||
10 | .16 (28) | Sublease Agreement, by and between Marriott International Administrative Services, Inc. and the Registrant, dated as of April 13, 2010. | ||
10 | .17 (29) | BroadSoft, Inc. Non-Employee Director Compensation Policy. | ||
21 | .1* | Subsidiaries of the Registrant. | ||
23 | .1 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. | ||
23 | .2 | Consent of Burr Pilger Mayer, Inc., Independent Accountants. | ||
23 | .3 | Consent of Cooley LLP (included in Exhibit 5.1). | ||
24 | .1* | Power of Attorney (see page II-9 of original filing). |
* | Previously filed. |
(1) | Filed as exhibit 2.1 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(2) | Filed as exhibit 2.2 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(3) | Filed as exhibit 2.3 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(4) | Filed as exhibit 99.1 to the registrants Current Report on Form 8-K (File No. 001-34777) filed with the Securities and Exchange Commission on October 29, 2010 and incorporated herein by reference. | |
(5) | Filed as exhibit 3.1 to the registrants Current Report on Form 8-K (File No. 001-34777) filed with the Securities and Exchange Commission on June 25, 2010 and incorporated herein by reference. | |
(6) | Filed as exhibit 3.6 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(7) | Filed as exhibit 4.1 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |
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(8) | Filed as exhibit 4.5 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(9) | Filed as exhibit 4.6 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(10) | Filed as exhibit 4.7 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(11) | Filed as exhibit 4.8 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(12) | Filed as exhibit 4.9 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on April 16, 2010 and incorporated herein by reference. |
(13) | Filed as exhibit 10.1 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(14) | Filed as exhibit 10.2 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(15) | Filed as exhibit 10.3 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(16) | Filed as exhibit 10.4 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(17) | Filed as exhibit 10.5 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |
(18) | Filed as exhibit 10.6 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |
(19) | Filed as exhibit 10.7 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |
(20) | Filed as exhibit 10.8 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(21) | Filed as exhibit 10.9 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(22) | Filed as exhibit 10.10 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(23) | Filed as exhibit 10.14 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
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(24) | Filed as exhibit 10.15 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(25) | Filed as exhibit 10.16 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(26) | Filed as exhibit 10.17 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(27) | Filed as exhibit 10.18 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on April 16, 2010 and incorporated herein by reference. | |
(28) | Filed as exhibit 10.19 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on April 16, 2010 and incorporated herein by reference. | |
(29) | Filed as exhibit 10.20 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |
(b) Financial Statement Schedules.
See index to BroadSoft, Inc.s Consolidated Financial
Statements on page F-1. The following Financial Statement
Schedule was filed with
pre-effective
Amendment No. 1 to this Registration Statement on
page F-60 and made a part of this Registration Statement:
Schedule II - Valuation and Qualifying Accounts.
All other schedules, including schedules related to Sylantro
Systems Corporations Consolidated Financial Statements and
M6s Division Statements, have been omitted because they
are not required or are not applicable.
ITEM 17. | UNDERTAKINGS |
The undersigned Registrant hereby undertakes that, for purposes
of determining liability under the Securities Act of 1933 to any
purchaser, if the Registrant is subject to Rule 430C, each
prospectus filed pursuant to Rule 424(b) as part of this
registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be
deemed to be part of and included in the registration statement
as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made
in any such document immediately prior to such date of first use.
The undersigned Registrant hereby undertakes that, for the
purpose of determining liability of the Registrant under the
Securities Act of 1933 to any purchaser in the initial
distribution of the securities: the undersigned Registrant
undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement,
regardless of the underwriting method
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used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
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 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
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, 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 undersigned 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Pre-effective
Amendment No. 2 to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Gaithersburg, State of Maryland on
the 15th day of December, 2010.
BROADSOFT, INC.
By: |
/s/ James
A. Tholen
|
James A. Tholen
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated:
Signatures
|
Title
|
Date
|
||||
* Michael Tessler |
President, Chief Executive Officer and Director (Principal Executive Officer) |
December 15, 2010 | ||||
/s/ James
A. Tholen James A. Tholen |
Chief Financial Officer (Principal Financial and Accounting Officer) |
December 15, 2010 | ||||
* Robert P. Goodman |
Director and Chairman of the Board | December 15, 2010 | ||||
* John J. Gavin, Jr. |
Director | December 15, 2010 | ||||
* Douglas L. Maine |
Director | December 15, 2010 | ||||
* John D. Markley, Jr. |
Director | December 15, 2010 | ||||
* Joseph R. Zell |
Director | December 15, 2010 | ||||
*By: |
/s/ James
A. Tholen James A. Tholen Attorney-in-Fact |
December 15, 2010 |
II-9
EXHIBIT INDEX
The following exhibits are included herein or incorporated
herein by reference:
Exhibit |
||||
Number
|
Description of Document
|
|||
1 | .1 | Form of Underwriting Agreement. | ||
2 | .1 (1) | Asset Purchase Agreement by and among the Registrant, BroadSoft M6, LLC and GENBAND Inc., dated as of August 14, 2008. | ||
2 | .2 (2) | Amendment to Asset Purchase Agreement and Disclosure Schedule by and among the Registrant, BroadSoft M6, LLC and GENBAND Inc., dated as of August 27, 2008. | ||
2 | .3 (3) | Agreement and Plan of Merger and Reorganization by and among the Registrant, BroadSoft Sylantro, Inc., Sylantro Systems Corporation and Shareholder Representative Services LLC, dated as of December 8, 2008. | ||
2 | .4 (4) | Asset Purchase Agreement by and between Casabi, Inc. and BroadSoft Casabi, LLC, dated as of October 12, 2010. | ||
3 | .1 (5) | Amended and Restated Certificate of Incorporation of the Registrant. | ||
3 | .2 (6) | Amended and Restated Bylaws of the Registrant. | ||
4 | .1 (7) | Specimen Stock Certificate evidencing shares of common stock. | ||
4 | .3 (8) | Fourth Amended and Restated Registration Rights Agreement, dated as of June 26, 2007. | ||
4 | .4 (9) | First Amendment to Fourth Amended and Restated Registration Rights Agreement, dated as of November 25, 2008. | ||
4 | .5 (10) | Second Amendment to Fourth Amended and Restated Registration Rights Agreement, dated as of December 23, 2008. | ||
4 | .6 (11) | Third Amendment to Fourth Amended and Restated Registration Rights Agreement, dated as of October 19, 2009. | ||
4 | .7 (12) | Fourth Amendment to Fourth Amended and Restated Registration Rights Agreement, dated as of March 26, 2010. | ||
5 | .1 | Opinion of Cooley LLP regarding legality. | ||
10 | .1 (13) | BroadSoft, Inc. 1999 Stock Incentive Plan, as amended. | ||
10 | .2 (14) | Form of Stock Option Grant Agreement for BroadSoft, Inc. 1999 Stock Incentive Plan. | ||
10 | .3 (15) | Form of Common Stock Purchase Agreement and Stock Restriction Agreement for BroadSoft, Inc. 1999 Stock Incentive Plan. | ||
10 | .4 (16) | Stock Restriction Agreement by and between James A. Tholen and the Registrant, dated as of August 30, 2007. | ||
10 | .5 (17) | BroadSoft, Inc. Amended and Restated 2009 Equity Incentive Plan. | ||
10 | .6 (18) | Form of Stock Option Agreement for BroadSoft, Inc. Amended and Restated 2009 Equity Incentive Plan. | ||
10 | .7 (19) | Form of Restricted Stock Unit Award Agreement for BroadSoft, Inc. Amended and Restated 2009 Equity Incentive Plan. | ||
10 | .8 (20) | Form of Indemnification Agreement entered into between the Registrant and certain of its directors and its executive officers. | ||
10 | .9 (21) | Form of Indemnification Agreement entered into between the Registrant and certain of its directors. | ||
10 | .10 (22) | Form of Executive Change in Control Severance Benefits Agreement entered into between the Registrant and its executive officers. | ||
10 | .11 (23) | Loan and Security Agreement by and among ORIX Venture Finance LLC, the Registrant, BroadSoft International, Inc. and BroadSoft M6, LLC, dated as of September 26, 2008. |
Exhibit |
||||
Number
|
Description of Document
|
|||
10 | .12 (24) | Consent and Amendment No. 1 to Loan and Security Agreement by and among ORIX Venture Finance LLC, the Registrant, BroadSoft International, Inc., BroadSoft M6, LLC and BroadSoft Sylantro, Inc., dated as of December 23, 2008. | ||
10 | .13 (25) | Amendment No. 2 to Loan and Security Agreement by and among ORIX Venture Finance LLC, the Registrant, BroadSoft International, Inc., BroadSoft M6, LLC and BroadSoft Sylantro, Inc., dated as of June 30, 2009. | ||
10 | .14 (26) | Consent and Amendment No. 3 to Loan and Security Agreement by and among ORIX Venture Finance LLC, the Registrant, BroadSoft International, Inc., BroadSoft M6, LLC, BroadSoft Sylantro, Inc. and BroadSoft PacketSmart, Inc., dated as of October 15, 2009. | ||
10 | .15 (27) | Amendment No. 4 to Loan and Security Agreement, by and among the Registrant, BroadSoft International, Inc., BroadSoft M6, LLC, BroadSoft Sylantro, Inc., BroadSoft PacketSmart, Inc. and ORIX Venture Finance LLC, dated as of April 1, 2010. | ||
10 | .16 (28) | Sublease Agreement, by and between Marriott International Administrative Services, Inc. and the Registrant, dated as of April 13, 2010. | ||
10 | .17 (29) | BroadSoft, Inc. Non-Employee Director Compensation Policy. | ||
21 | .1* | Subsidiaries of the Registrant. | ||
23 | .1 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. | ||
23 | .2 | Consent of Burr Pilger Mayer, Inc., Independent Accountants. | ||
23 | .3 | Consent of Cooley LLP (included in Exhibit 5.1). | ||
24 | .1* | Power of Attorney (see page II-9 of original filing). |
* | Previously filed. |
(1) | Filed as exhibit 2.1 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(2) | Filed as exhibit 2.2 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(3) | Filed as exhibit 2.3 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(4) | Filed as exhibit 99.1 to the registrants Current Report on Form 8-K (File No. 001-34777) filed with the Securities and Exchange Commission on October 29, 2010 and incorporated herein by reference. | |
(5) | Filed as exhibit 3.1 to the registrants Current Report on Form 8-K (File No. 001-34777) filed with the Securities and Exchange Commission on June 25, 2010 and incorporated herein by reference. | |
(6) | Filed as exhibit 3.6 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. | |
(7) | Filed as exhibit 4.1 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |
(8) | Filed as exhibit 4.5 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(9) | Filed as exhibit 4.6 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(10) | Filed as exhibit 4.7 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(11) | Filed as exhibit 4.8 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(12) | Filed as exhibit 4.9 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on April 16, 2010 and incorporated herein by reference. |
(13) | Filed as exhibit 10.1 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(14) | Filed as exhibit 10.2 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(15) | Filed as exhibit 10.3 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(16) | Filed as exhibit 10.4 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(17) | Filed as exhibit 10.5 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |
(18) | Filed as exhibit 10.6 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |
(19) | Filed as exhibit 10.7 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |
(20) | Filed as exhibit 10.8 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(21) | Filed as exhibit 10.9 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(22) | Filed as exhibit 10.10 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(23) | Filed as exhibit 10.14 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(24) | Filed as exhibit 10.15 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(25) | Filed as exhibit 10.16 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(26) | Filed as exhibit 10.17 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on March 15, 2010 and incorporated herein by reference. |
(27) | Filed as exhibit 10.18 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on April 16, 2010 and incorporated herein by reference. |
(28) | Filed as exhibit 10.19 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on April 16, 2010 and incorporated herein by reference. |
(29) | Filed as exhibit 10.20 to the registrants Registration Statement on Form S-1 (Registration No. 333-165484) filed with the Securities and Exchange Commission on June 1, 2010 and incorporated herein by reference. |