As filed with the Securities and Exchange Commission on June 14, 2011
Registration No. 333-174461
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
Form F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Velti plc
(Exact name of registrant as specified in its charter)
Not Applicable
(Translation of Registrant's name into English)
Jersey (State or other jurisdiction of incorporation or organization) |
7372 (Primary Standard Industrial Classification Code Number) |
Not Applicable (I.R.S. Employer Identification Number) |
First Floor, 28-32 Pembroke Street Upper
Dublin 2, Republic of Ireland
Attn: Alex Moukas, Chief Executive Officer
353 (0) 1234 2676
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Velti USA, Inc.
150 California Street
San Francisco, California 94111
Attn: Sally J. Rau, Chief Administrative Officer and General Counsel
(415) 315-3400
(Name, address, including zip code and telephone number,
including area code, of agent for service)
Copies to: | ||
Peter M. Astiz Edward H. Batts DLA Piper LLP (US) 2000 University Avenue East Palo Alto, California 94303 (650) 833-2000 |
Marc D. Jaffe Wesley C. Holmes Latham & Watkins LLP 885 Third Avenue New York, New York 10022 (212) 906-1200 |
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 offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, please 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, please 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, please 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, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. 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 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.
This Amendment No. 2 to the registration statement on Form F-1 (File No. 333-174461) of Velti plc is being filed solely to amend Item 8 of Part II thereof and to transmit exhibits thereto. This Amendment No. 2 does not modify any provision of the preliminary prospectus contained in Part I or Items 6, 7, or 9 of Part II of the registration statement. Accordingly, this Amendment No. 2 does not include a copy of the preliminary prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS.
Item 6. Indemnification of Directors and Officers
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, 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 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.
Subject to the Jersey Companies Law, our Articles permit us to indemnify any director against any liability, to purchase and maintain insurance against any liability for any director and to provide any director with funds (whether by loan or otherwise) to meet expenditure incurred or to be incurred by him in defending any criminal, regulatory or civil proceedings or in connection with an application for relief (or to enable any such director to avoid incurring such expenditure).
However, Article 77 of the Jersey Companies Law limits the ability of a Jersey company to exempt or indemnify a director from any liability arising from acting as a director. It provides that neither a company (or any of its subsidiaries) nor any other person for some benefit conferred or detriment suffered directly or indirectly by the company, may exempt or indemnify any director from, or against, any liability incurred by him as a result of being a director of the company except where the company exempts or indemnifies him against:
Article 77 of the Jersey Companies Law permits a company to purchase and maintain directors' and officers' insurance and we maintain a directors' and officers' liability insurance policy for the benefit of our directors and officers.
II-1
Item 7. Recent Sales of Unregistered Securities
During the past three years, Velti plc (England and Wales) issued the following unregistered securities for cash. We believe that each of the following issuances was exempt from registration under the Securities Act in reliance on Regulation S under the Securities Act or under Section 4(2) thereof or Rule 701 pursuant to compensatory benefit plans and contracts related to compensation.
Purchaser
|
Date of Sale or Issuance |
Number of Ordinary Shares |
Nominal (Par) Value of Each Share(£) |
Amount Paid for Each Share(£) |
Underwriting Discount and Commission(£) |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Ivanka Kyutchukova (M Telecom) | May 27, 2008 | 19,566 | £0.05 | 1.626 | N/A | |||||||||
Stoytcho Vlaykov (M Telecom) | May 27, 2008 | 176,092 | £0.05 | 1.626 | N/A | |||||||||
M Telecom | June 4, 2009 | 496,625 | £0.05 | 0.05 | N/A | |||||||||
Thor Luxembourg S.à.r.L. | July 3, 2009 | 875,000 | £0.05 | 1.605 | N/A | |||||||||
Citigroup Nominees (Fidelity, Invesco, Investec, RBC, Gartmore, El Oro) | October 8, 2009 | 1,800,000 | £0.05 | 1.6 | £86,400 | |||||||||
Director (David C.D. Hobley) | October 8, 2009 | 20,000 | £0.05 | 1.6 | N/A | |||||||||
Velti plc (Jersey) | December 2, 2009 | 1(1) | £0.05 | 0.05 | N/A |
In addition, through March 31, 2011, we have issued 6,253,257 deferred share awards and 4,973,262 share options, of which 1,611,434 deferred share awards have forfeited upon termination of employment or failed to vest for failure to meet all performance conditions, 1,885,935 deferred share awards have vested, 20,969 share options have been exercised, and 709,159 share options have forfeited upon termination of employment. Each of these represent equity awards to acquire ordinary shares of Velti plc (Jersey). As of March 31, 2011, we had outstanding 2,817,507 deferred share awards and 4,243,174 share options. In addition, we have issued 270,327 ordinary shares to our non-employee directors as part of their compensation for service as members of our board of directors.
II-2
Velti plc (Jersey) was incorporated on August 25, 2009 and has issued the following unregistered securities since incorporation:
|
Date of Sale or Issuance |
Number of Ordinary Shares |
Nominal (Par) Value of Each Share(£) |
Amount Paid for Each Share(£) |
Underwriting Discount and Commission(£) |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Juris Limited and Lively Limited |
August 25, 2009 | 2 Subscriber Shares(2) | £0.05 | £0.05 | N/A | |||||||||
Shareholders of Velti plc (England and Wales) on December 17, 2009 |
December 18, 2009 | 37,530,261 Ordinary Shares(3) | £0.05 | The cancellation of 37,530,261 shares of Velti plc (England and Wales) | N/A | |||||||||
Shareholders and certain creditors of Mobclix, Inc. |
September 30, 2010 | 150,220 | £0.05 | £0.05 | N/A |
II-3
Item 8. Exhibits and Financial Statement Schedules
Exhibit Number |
Description | ||
---|---|---|---|
1.1*** | Form of Underwriting Agreement | ||
2.1** | Agreement and Plan of Reorganization by and among Velti plc, Vortex Acquisition Sub, Inc., Mobclix, Inc. and Richard Talley, as Stockholders' Agent dated September 30, 2010 | ||
3.1*** | Memorandum and Articles of Association | ||
4.1** | Specimen certificate evidencing ordinary shares | ||
5.1* | Opinion of Mourant Ozannes as to the validity of the ordinary shares | ||
8.1* | Opinion of Mourant Ozannes as to Jersey tax matters (included in Exhibit 5.1) | ||
8.2*** | Opinion of DLA Piper LLP (US) as to U.S. tax matters | ||
8.3*** | Opinion of Mason Hayes + Curran as to Ireland tax matters | ||
10.1** | Share Incentive Plan | ||
10.2** | JV/NCA Company Share Incentive Plan | ||
10.3** | 2009 U.S. Employee Share Incentive Plan | ||
10.4** | 2009 U.S. Non-Employee Share Incentive Plan | ||
10.5** | Series A Preferred Share and Note Purchase Agreement among Ydon Holdings Ltd. and the persons listed as "Founders" on the signature pages to the Purchase Agreement dated April 22, 2008, as amended March 2, 2010 | ||
10.8** | Joint Venture and Shareholders' Agreement between Firefly e-Ventures Ltd., a division of HT Media, and Velti plc dated November 22, 2008 | ||
10.9** | Amendment and Restatement Deed dated October 14, 2009 between Thor Luxembourg S.a.r.l. and Velti plc, amending and restating the Thor Credit Facilities Agreement dated June 26, 2009 | ||
10.10** | English translation of Real Estate Lease relating to the first floor of 44 Kifisias Avenue and Gravias Street, Granikou Street and Fragoklisias Street, Athens, Greece | ||
10.11** | English translation of Assignment of Sub-Lease relating to the second floor of 44 Kifisias Avenue and Gravias Street, Granikou Street and Fragoklisias Street, Athens, Greece | ||
10.12** | English translation of Real Estate Lease relating to the first floor of 42 Kifisias Avenue and Fragoklisias Street, Athens, Greece | ||
10.13** | Lease Agreement relating to San Francisco, California facility, as amended | ||
10.14** | Form of Indemnity Agreement between Velti plc and its officers, directors and key employees | ||
10.15** | Form of Service Agreement between Velti plc and each of Alex Moukas, Chris Kaskavelis and Menelaos Scouloudis | ||
10.16** | Form of Letter of Appointment between Velti plc and each of its non-executive directors: David W. Mann, Jerry Goldstein, David C.D. Hobley and Nicholas P. Negroponte | ||
10.17** | Offer Letter dated August 19, 2009 between Velti plc and Wilson W. Cheung | ||
10.18** | Offer Letter dated August 2, 2010 between Velti plc and Sally J. Rau | ||
10.19** | Loan Agreement between Velti Software Products and Related Products and Services S.A. and Black Sea Trade and Development Bank dated August 31, 2010 |
II-4
Exhibit Number |
Description | ||
---|---|---|---|
10.20** | Term Facility Agreement and Letter of Extension dated June 30, 2010 to Amendment and Restatement Deed between Thor Luxembourg S.a.r.l. and Velti plc. | ||
10.21** | Letter of Extension dated December 21, 2010 to Amendment and Restatement Deed between Thor Luxembourg S.a.r.l. and Velti plc | ||
10.22*** | Amendment No. 1 to Agreement and Plan of Reorganization dated May 1, 2011 between Velti plc and Mobclix, Inc. | ||
21.1** | List of Subsidiaries | ||
23.1* | Consent of Baker Tilly Virchow Krause, LLP | ||
23.2* | Consent of Mourant Ozannes (included in Exhibit 5.1) | ||
23.3*** | Consent of DLA Piper LLP (US) (included in Exhibit 8.2) | ||
23.4*** | Consent of Mason Hayes + Curran (included in Exhibit 8.3) | ||
24.1*** | Powers of Attorney |
All schedules are omitted because they are not required, are not applicable or the information is included in the financial statements or notes thereto or the additional information thereto.
Item 9. Undertakings
The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 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:
II-5
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this Amendment No. 2 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in San Francisco on the 14th day of June, 2011.
VELTI PLC | ||||
By: |
/s/ ALEX MOUKAS |
|||
Name: | Alex Moukas | |||
Title: | Chief Executive Officer |
Pursuant to the requirements of the United States Securities Act of 1933, this Amendment No. 2 to Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
|
|
Date
|
||
---|---|---|---|---|
/s/ ALEX MOUKAS Alex Moukas |
Chief Executive Officer and Director (Principal Executive Officer) |
June 14, 2011 | ||
/s/ WILSON W. CHEUNG Wilson W. Cheung |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
June 14, 2011 |
||
* Chris Kaskavelis |
Chief Operating Officer and Director |
June 14, 2011 |
||
* David W. Mann |
Chairman of the Board of Directors |
June 14, 2011 |
||
* David C.D. Hobley |
Director |
June 14, 2011 |
||
* Jerry Goldstein |
Director |
June 14, 2011 |
||
* Nicholas P. Negroponte |
Director |
June 14, 2011 |
*By: | /s/ ALEX MOUKAS Attorney-in-Fact |
II-6
Signature of Authorized Representative in the United States
Pursuant to the United States Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States for Velti plc, has signed this Registration Statement and any amendment thereto in San Francisco, California, on the 14th day of June, 2011.
Velti USA, Inc. | ||||
/s/ WILSON W. CHEUNG |
||||
Name: | Wilson W. Cheung | |||
Title: | Authorized Representative |
II-7
Exhibit Number |
Description | ||
---|---|---|---|
1.1*** | Form of Underwriting Agreement | ||
2.1** | Agreement and Plan of Reorganization by and among Velti plc, Vortex Acquisition Sub, Inc., Mobclix, Inc. and Richard Talley, as Stockholders' Agent, dated September 30, 2010 | ||
3.1*** | Memorandum and Articles of Association | ||
4.1** | Specimen certificate evidencing ordinary shares | ||
5.1* | Opinion of Mourant Ozannes as to the validity of the ordinary shares | ||
8.1* | Opinion of Mourant Ozannes as to Jersey tax matters (included in Exhibit 5.1) | ||
8.2*** | Opinion of DLA Piper LLP (US) as to U.S. tax matters | ||
8.3*** | Opinion of Mason Hayes + Curran as to Ireland tax matters | ||
10.1** | Share Incentive Plan | ||
10.2** | JV/NCA Company Share Incentive Plan | ||
10.3** | 2009 U.S. Employee Share Incentive Plan | ||
10.4** | 2009 U.S. Non-Employee Share Incentive Plan | ||
10.5** | Series A Preferred Share and Note Purchase Agreement among Ydon Holdings Ltd. and the persons listed as "Founders" on the signature pages to the Purchase Agreement dated April 22, 2008, as amended March 2, 2010 | ||
10.8** | Joint Venture and Shareholders' Agreement between Firefly e-Ventures Ltd., a division of HT Media, and Velti plc dated November 22, 2008 | ||
10.9** | Amendment and Restatement Deed dated October 14, 2009 between Thor Luxembourg S.a.r.l. and Velti plc, amending and restating the Thor Credit Facilities Agreement dated June 26, 2009 | ||
10.10** | English translation of Real Estate Lease relating to the first floor of 44 Kifisias Avenue and Gravias Street, Granikou Street and Fragoklisias Street, Athens, Greece | ||
10.11** | English translation of Assignment of Sub-Lease relating to the second floor of 44 Kifisias Avenue and Gravias Street, Granikou Street and Fragoklisias Street, Athens, Greece | ||
10.12** | English translation of Real Estate Lease relating to the first floor of 42 Kifisias Avenue and Fragoklisias Street, Athens, Greece | ||
10.13** | Lease Agreement relating to San Francisco, California facility, as amended | ||
10.14** | Form of Indemnity Agreement between Velti plc and its officers, directors and key employees | ||
10.15** | Form of Service Agreement between Velti plc and each of Alex Moukas, Chris Kaskavelis and Menelaos Scouloudis | ||
10.16** | Form of Letter of Appointment between Velti plc and its non-executive directors: David W. Mann, Jerry Goldstein, David C. Hobley and Nicholas P. Negroponte | ||
10.17** | Offer Letter dated August 19, 2009 between Velti plc and Wilson W. Cheung | ||
10.18** | Offer Letter dated August 2, 2010 between Velti plc and Sally J. Rau | ||
10.19** | Loan Agreement between Velti Software Products and Related Products and Services S.A. and Black Sea Trade and Development Bank dated August 31, 2010 | ||
10.20** | Term Facility Agreement and Letter of Extension dated June 30, 2010 to Amendment and Restatement Deed between Thor Luxembourg S.a.r.l. and Velti plc. | ||
10.21** | Letter of Extension dated December 21, 2010 to Amendment and Restatement Deed between Thor Luxembourg S.a.r.l. and Velti plc | ||
10.22*** | Amendment No. 1 to Agreement and Plan of Reorganization dated May 1, 2011 between Velti plc and Mobclix, Inc. |
Exhibit Number |
Description | ||
---|---|---|---|
21.1** | List of Subsidiaries | ||
23.1* | Consent of Baker Tilly Virchow Krause, LLP | ||
23.2* | Consent of Mourant Ozannes (included in Exhibit 5.1) | ||
23.3*** | Consent of DLA Piper LLP (US) (included in Exhibit 8.2) | ||
23.4*** | Consent of Mason Hayes + Curran (included in Exhibit 8.3) | ||
24.1*** | Powers of Attorney |
22 Grenville Street St Helier Jersey JE4 8PX Channel Islands T +44 1534 676 000 F +44 1534 676 333 mourantozannes.com |
Velti plc
First Floor
28-32 Pembroke Street Upper
Dublin 2
Republic of Ireland
13 June 2011
Our ref: 3000769/WILLI/MdFJ/3420736/1
Dear Sirs
Velti plc (the Company)
Registration of Shares under the US Securities Act of 1933, as amended (the Securities Act)
We have acted as the Company's Jersey legal advisers in connection with the offering by the Company of the Primary Shares (as defined below) and the registration of up to 11,302,780 ordinary shares of £0.05 each in the capital of the Company (the Shares), including up to 1,474,275 ordinary shares to cover any over allotments granted under the Underwriting Agreement (as defined below), under the Securities Act.
Of the Shares, up to 9,474,275 Shares (the Primary Shares) are being offered by the Company and up to 1,828,505 Shares (the Selling Shareholder Shares) are being offered by the selling shareholders (the Selling Shareholders) identified as such in the Registration Statement (as defined below).
Pursuant to the Underwriting Agreement, the Shares will be sold to the Underwriters (as defined in the Underwriting Agreement) for resale to the members of the public in the United States as described in the Registration Statement.
The Company has asked us to provide this opinion in connection with the registration of the Shares under the Securities Act.
1. Documents examined
2. Assumptions
For the purposes of giving this opinion we have assumed:
2
3. Opinion
As a matter of Jersey law, and based on, and subject to, the foregoing and the qualifications mentioned below, we are of the opinion that:
4. Qualifications
Our opinion is subject to any matter of fact not disclosed to us and to the following qualifications:
3
5. Jersey law
This opinion is limited to matters of, and is interpreted in accordance with, Jersey law as at the date of this opinion. We express no opinion with respect to the laws of any other jurisdiction. We assume no obligation to update or supplement this opinion to reflect any facts or circumstances which may come to our attention, or any changes in law which may occur, after the date of this opinion.
6. Consent
Yours faithfully
/s/ Mourant Ozannes
Mourant Ozannes
4
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the reference to us under the heading "Experts" and to the use in this Amendment No. 2 to Registration Statement and related Prospectus of our report dated April 11, 2011, relating to the financial statements and financial statement schedule of Velti plc included in its Annual Report (Form 20-F) for the year ended December 31, 2010.
/s/ Baker Tilly Virchow Krause LLP
Minneapolis, Minnesota
June 14, 2011