<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 22, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
ROGUE WAVE SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7372 93-1064214
(State or other jurisdiction of incorporation (Primary Standard Industrial Classification (I.R.S. Employer Identification
or organization) Code Number) Number)
</TABLE>
5500 FLATIRON PARKWAY
BOULDER, COLORADO 80301
(303) 545-3000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
-------------------------
Michael Scally
PRESIDENT AND CHIEF OPERATING OFFICER
ROGUEWAVE SOFTWARE, INC.
5500 FLATIRON PARKWAY
BOULDER, COLORADO 80301
(303) 473-9118
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------------
Copies to:
MARK P. TANOURY, ESQ.
COOLEY GODWARD LLP
3000 SAND HILL ROAD, BLDG. 3, SUITE 230
MENLO PARK, CALIFORNIA 94025-7116
(650) 843-5000
Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans please check the following box. [_]
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, please check the following box. [X]
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 number of the earlier effective registration
statement for the same offering. [_]
If this Form is filed in a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registrations statement number of the earlier effective registration
statement of the same offering. [_]
If delivery of this prospectus is expected to be made pursuant to rule 434,
please check the following box. [_]
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
PROPOSED PROPOSED MAXIMUM
TITLE OF EACH CLASS MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE AMOUNT OFFERING OFFERING REGISTRATION
REGISTERED TO BE REGISTERED PRICE PER UNIT(1) PRICE(1) FEE
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 230,000 $9.625 $2,213,750 $653
===========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low prices of the Company's Common Stock as
reported on the Nasdaq National Market on May 20, 1998.
-------------------------
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.
<PAGE>
********************************************************************************
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICTATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
********************************************************************************
PROSPECTUS SUBJECT TO COMPLETION, DATED MAY 22, 1998
230,000 SHARES
ROGUE WAVE SOFTWARE, INC.
COMMON STOCK
________________________
This Prospectus covers 230,000 shares (the "Shares") of the Common Stock,
$.001 par value ("Common Stock"), of Rogue Wave Software, Inc., a Delaware
corporation ("Rogue Wave" or the "Company"), which are being offered and sold by
certain stockholders of the Company (the "Selling Stockholders"). The Selling
Stockholders, directly or through agents, broker-dealers or underwriters, may
sell the Common Stock offered hereby from time to time on terms to be determined
at the time of sale, in transactions on the Nasdaq National Market or in
privately negotiated transactions or in a combination of such methods of sale,
at fixed prices related to such prevailing prices or at negotiated prices. The
Selling Stockholders may effect such transactions by selling Shares to or
through broker-dealers, and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Selling Stockholders or
the purchasers of the Shares for whom such broker-dealers may act as agents or
to whom they sell as principal or both (which compensation to a particular
broker-dealer may be in excess of customary commissions). The Company will not
receive any proceeds from the sale of Shares by the Selling Stockholders. See
"Selling Stockholders" and "Plan of Distribution."
The Common Stock of the Company is quoted on the Nasdaq National Market
under the symbol "RWAV." Application has been made to list the Shares on the
Nasdaq National Market. The last reported sales price of the Common Stock on the
Nasdaq National Market on May 20, 1998 was $9.50 per share.
________________________
THIS OFFERING INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" ON PAGE 6.
________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
No underwriting commissions or discounts will be paid by the Company in
connection with this offering. Estimated expenses payable by the Company in
connection with this offering are estimated to be $40,000. The aggregate
proceeds to the Selling Stockholders from the Common Stock will be the purchase
price of the Common Stock sold less the aggregate agents' commissions and
underwriters' discounts, if any, and other expenses of issuance and distribution
not borne by the Company. See "Plan of Distribution."
The Selling Stockholders and any agents, broker-dealers or underwriters
that participate in the distribution of the Common Stock may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Act"), and any commission received by them and any profit on the resale of the
Common Stock purchased by them may be deemed to be underwriting discounts or
commissions under the Act. The Company has agreed to indemnify the Selling
Stockholders and certain other persons against certain liabilities, including
liabilities under the Act.
__________ __, 1998
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files annual and quarterly reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information may be inspected and copied at
the Commission's Public Reference Section, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, as well as at the Commission's Regional Offices at 7
World Trade Center, 13th Floor, New York, New York 10048; and 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can
be obtained at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission
also makes electronic filings publicly available on the Internet. The
Commission's Internet address is http://www.sec.gov. The Commission's Web site
also contains reports, proxy and information statements, and other information
regarding the Company that has been filed electronically with the Commission.
The Common Stock of the Company is quoted on the Nasdaq National Market. Reports
and other information concerning the Company may be inspected at the National
Association of Securities Dealers, Inc. at 1735 K Street, N.W., Washington, D.C.
20006.
ADDITIONAL INFORMATION
A registration statement on Form S-3 with respect to the Common Stock
offered hereby (the "Registration Statement") has been filed with the Commission
under the Act. This Prospectus does not contain all of the information
contained in such Registration Statement and the exhibits and schedules thereto,
certain portions of which have been omitted pursuant to the rules and
regulations of the Commission. For further information with respect to the
Company and the Common Stock offered hereby, reference is made to the
Registration Statement and the exhibits and schedules thereto. Statements
contained in this Prospectus regarding the contents of any contract or any other
documents are not necessarily complete and, in each instance, reference is
hereby made to the copy of such contract or document filed as an exhibit to the
Registration Statement. The Registration Statement, including exhibits thereto,
may be inspected without charge at the Commission's principal office in
Washington, D.C., and copies of all or any part thereof may be obtained from the
Public Reference Section, Securities and Exchange Commission, Washington, D.C.,
20549, upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Commission under the Exchange Act
(File No. 0-20725), are hereby incorporated by reference into this Prospectus:
a) The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1996, filed on or about February 14, 1997, including all material
incorporated by reference therein;
b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1997, filed on or about May 13, 1997, including all material
incorporated by reference therein;
c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997, filed on or about August 1, 1997, including all material
incorporated by reference therein;
d) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997, filed on or about December 10, 1997, including all material
incorporated by reference therein;
2.
<PAGE>
e) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1997, filed on or about February 17, 1998, including all
material incorporated by reference therein;
f) The Company's Current Report on Form 8-K, filed on or about March 9,
1998, including all material incorporated by reference therein;
g) The Company's Current Report on Form 8-K/A, filed on or about May 11,
1998, including all material incorporated by reference therein;
h) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998, filed on or about May 15, 1998, including all material
incorporated by reference therein;
i) The Company's Current Report on Form 8-K/A, filed on or about May 20,
1998, including all material incorporated by reference therein; and
j) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such documents. Any
statement contained in this Prospectus or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently-filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the documents that have been
incorporated by reference herein (not including exhibits to such documents
unless such exhibits are specifically incorporated by reference herein or into
such documents). Such request may be directed to: Investor Relations, RogueWave
Software, Inc., 5500 Flatiron Parkway, Boulder, Colorado 80301.
The discussions in this Prospectus and the documents incorporated by
reference herein contain forward-looking statements that involve risks and
uncertainties. The Company's actual results could differ materially from those
discussed herein and in such incorporated documents. Factors that could cause
or contribute to such differences include, but are not limited to, those
discussed under the heading "Risk Factors" herein, as well as those discussed in
the documents incorporated herein by reference.
3.
<PAGE>
THE COMPANY
Rogue Wave is a leading provider of object-oriented software parts and
related tools. The Company's C++ and Java-based products are used to develop
robust, scalable software applications for a wide variety of environments,
including client-server, Internet and intranet environments. These products
enable customers to construct software applications more quickly, with higher
quality and across multiple platforms, and reduce the complexity associated with
the software development process. The Company's software parts provide the
functionality to perform fundamental operations such as network and database
connectivity, thereby allowing programmers to focus on the core functionality of
the software under development.
Software is increasingly the most critical component of today's
information systems. Businesses typically rely on such information systems as a
strategic resource and as a way of differentiating themselves from their
competitors. However, software development technologies and methods have not
kept pace with the increasing reliance on software systems. In fact, the
intricacies of modern software systems have tended to make the software
development process longer, more complicated and increasingly error prone. To
address these difficulties in developing and maintaining complex software
systems, organizations are increasingly adopting object-oriented technologies
and development methodologies. For object-oriented software development, C++
has emerged as the industry standard programming language. Java, another
object-oriented programming language that is similar to C++, has been recently
popularized through the growth of the Internet and intranet environments. Java
offers additional benefits in the areas of platform independence and distributed
computing.
While objects are easy to use once built, developing robust, well-
designed objects can be extremely difficult and time consuming. Organizations
are seeking to improve quality and time-to-market by purchasing pre-written
objects or "parts" from independent vendors to handle fundamental operations
ranging from simple functions such as date handling to more complex functions
such as network communications. The Company believes that the use of third-
party software parts will enable organizations to develop robust software
applications more rapidly, at lower cost and with more functionality than
applications using only internally developed objects.
The Company's objective is to be the leading provider of high quality,
reusable software parts and related tools for the development of object-oriented
software applications. The Company's products have the features and
functionality necessary to provide customers with the benefits of increased
software flexibility and quality, accelerated development times and reduced
maintenance costs. The Company follows a cross-platform strategy allowing most
objects to be used on the most popular operating systems, such as Windows and
UNIX. The Company's strategy is to leverage its installed base of Tools.h++
customers by offering additional object-oriented software parts and related
tools. The Company also intends to develop strategic partnerships, extend its
technological leadership, promote the enterprise-wide adoption of Rogue Wave
products and expand its worldwide distribution.
To date, Rogue Wave has sold over 50,000 end-user licenses. Rogue Wave
markets its software primarily through its telesales and direct field sales
organization, and to a lesser extent through indirect channel partners. The
Company bundles its Tools.h++ and/or Standard C++ Library products with popular
compilers offered by leading vendors, including Hewlett-Packard, Microware,
Siemens-Nixdorf, Silicon Graphics and Sun Microsystems. The Company's products
are used by programmers to develop software applications for organizations in a
wide variety of industries. The Company's
4.
<PAGE>
customers include 3Com, Boeing, Hewlett-Packard, IBM, MCI, Morgan Stanley,
Motorola and Netscape.
The Company was founded in 1989 and operated as an unincorporated
business until its incorporation in Oregon in July 1991. The Company
reincorporated into Delaware on November 21, 1996. Stingray Software, Inc., a
subsidiary of Rogue Wave which develops and distributes object-oriented
development tools for Windows programmers and is a leading provider of Visual
C++ class libraries, was acquired by Rogue Wave on February 27, 1998. Unless the
context otherwise requires, "Rogue Wave" and the "Company" refer to Rogue Wave
Software, Inc. and its subsidiaries. The Company's executive offices are located
at 5500 Flatiron Parkway, Boulder, Colorado 80301. Its telephone number is (303)
473-9118. The Company maintains a Web site on the World Wide Web.
5.
<PAGE>
RISK FACTORS
In addition to the other information in this Prospectus, the following
factors should be considered carefully in evaluating an investment in the Common
Stock.
Uncertainty Of Future Operating Results; Fluctuations In Quarterly
Operating Results. Future operating results will depend upon many factors,
including the demand for the Company's products and services, the level of
product and price competition, the length of the Company's sales cycle, the size
and timing of individual license transactions, the delay or deferral of customer
implementations, the budget cycles of the Company's customers, the Company's
success in expanding its direct sales force and indirect distribution channels,
the timing of new product introductions and product enhancements, the mix of
products and services licensed or sold, levels of international sales,
activities of and acquisitions by competitors, changes in pricing policy by the
Company and its competitors, publication of opinions about the Company, its
products and object-oriented technology by industry analysts, the hiring of new
employees, changes in foreign currency exchange rates, product lifecycles and
the ability of the Company to develop and market new products and control costs.
The Company generally ships orders as received and as a result typically has
little or no backlog. Quarterly revenue and operating results therefore depend
on the volume and timing of orders received during the quarter, which are
difficult to forecast. In addition, the Company has historically earned a
substantial portion of its revenue in the last weeks, or even days, of each
quarter. To the extent this trend continues, the failure to achieve such revenue
during the last weeks of any given quarter will have a material adverse effect
on the Company's business, financial condition and results of operations.
Furthermore, due to all of the foregoing factors, it is possible that in some
future quarter the Company's operating results may be below the expectations of
public market analysts and investors. In such event, the price of the Company's
Common Stock would likely be materially and adversely affected.
Prior growth rates in the Company's revenue and net income should not be
considered indicative of future operating results. Service and maintenance
revenue tends to fluctuate as consulting contracts, which may extend over
several months, are undertaken, renewed, completed or terminated. License fee
revenue is difficult to forecast due to the fact that the Company's sales cycle,
from initial evaluation to purchase, varies substantially from customer to
customer. As a result of these and other factors, revenue for any quarter is
subject to significant variation, and the Company believes that period-to-period
comparisons of its results of operations are not necessarily meaningful and
should not be relied upon as indicators of future performance. Because the
Company's operating expenses are based on anticipated revenue trends and because
a high percentage of the Company's expenses are relatively fixed, a delay in the
recognition of revenue from a limited number of transactions could cause
significant variations in operating results from quarter to quarter and could
result in significant losses. During the first quarter of calendar year 1998,
the Company moved its administrative operations from Corvallis, Oregon to
Boulder, Colorado. In connection with this move, the Company expects to incur
charges totaling approximately $1.5 million during fiscal 1998. Such charges
will have a material adverse effect on the operating results for the quarters in
which they are incurred. Specifically, the Company anticipates that it will
incur the substantial majority of such charges during the second quarter of
fiscal 1998. Furthermore, the Company may incur additional charges associated
with the move which, if incurred, may have a material adverse effect on the
Company's operating results. In addition, the Company contributed technology to
and made an investment in HotData Inc. ("HotData") in order to develop
technology relating to the collection and verification of data across the
Internet. Because the Company owns a majority of the outstanding stock of
HotData, it is accounted for as a subsidiary of the Company. The
6.
<PAGE>
Company expects HotData will be in the development stage through at least fiscal
1998. There can be no assurance that the technology developed by HotData will be
commercialized, or even if it is commercialized there can be no assurance of
market acceptance due to its new and untested business model. The financial
results of HotData will be consolidated with the Company's financial results.
Accordingly, fluctuations in the operating results of HotData may have a
material adverse effect on the Company's operating results. Fluctuations in
operating results may also result in volatility in the price of the Company's
Common Stock.
Management Of Growth. The Company is experiencing a period of transition
and aggressive product introductions that has placed, and may continue to place,
a significant strain on its resources, including its personnel. Expansion of the
Company's product lines, additional product development and product
introductions, or acquisitions of other technologies or companies, when added to
the day-to-day activities of the Company, will place a further strain on the
Company's resources and personnel. In particular, the Company has acquired a
European distributor with offices and personnel in several European countries
and established a consulting group in Boulder, Colorado to help expand its
ability to provide consulting services. In addition, the Company recently
acquired Stingray Software, Inc. which develops and distributes development
tools from their facilities in Morrisville, North Carolina. Such additions
involve a number of risks, including risks related to the integration of new
businesses or business units, the substantial management time devoted to such
activities, the failure to achieve anticipated benefits, such as cost savings
and increased revenue, and the difficulties of managing additional operations.
The Company's acquisition of Inmark in October 1995 and Stingray in 1998 have
resulted in the Company's product development team being distributed in four
separate sites across the country. Managing this distribution requires a
significant amount of attention from management, particularly the Vice
President, Development and the Chief Technology Officer, to ensure that the
Company's development efforts are timely, consistent and well integrated. In
addition, the Company recently moved its administrative operations from
Corvallis, Oregon to Boulder, Colorado. This move has resulted in the
distribution of the Company's senior management team, which may make managing
the Company's operations more difficult. In particular, managing this transition
requires a significant amount of attention from management, particularly the
Company's Chief Operating Officer and Chief Financial Officer, both of whom have
relocated as part of the move.
Furthermore, the Company believes that its ability to achieve significant
revenue growth in the future will depend in large part on its success in
recruiting and training sufficient direct sales personnel and establishing and
maintaining relationships with its outside sales representatives. Although the
Company is currently investing, and plans to continue to invest, significant
resources to expand its direct sales force and to develop distribution
relationships with outside sales representatives, the Company has at times
experienced and continues to experience difficulty in recruiting qualified sales
personnel and in establishing necessary sales representative relationships. The
Company believes that the hiring and retaining of qualified individuals at all
levels in the Company is essential to the Company's ability to manage growth
successfully, and there can be no assurance that the Company will be successful
in attracting and retaining the necessary personnel. If Company management is
unable to effectively manage growth, the Company's business, financial condition
and results of operations will be materially and adversely affected.
Dependence On Emerging Market For C++ And Java. The Company's product
lines are designed for use in object-oriented software application development,
specifically the C++ and Java programming languages, and substantially all of
the Company's revenue has been attributable to sales of products and related
maintenance and consulting services related to C++ programming and development.
The Company believes that while the market for object-oriented technology in
general, and C++ tools
7.
<PAGE>
and programming applications in particular, is growing, the Company's growth
depends upon broader market acceptance of object-oriented technology and the C++
programming language. Even if broader market acceptance is achieved, the object-
oriented market may continue to be characterized by multiple software
environments, many of which are not supported by the Company's products, and
numerous competitors in the areas of tools, methodology and services.
Furthermore, the C++ programming language is very complex. Should the C++
programming language lose market acceptance or be replaced by another
programming language, the Company's business, financial condition and results of
operations would be materially and adversely affected. The Company's financial
performance will depend in part upon continued growth in the object-oriented
technology and C++ markets and the development of standards that the Company's
products address. There can be no assurance that the market will continue to
grow or that the Company will be able to respond effectively to the evolving
requirements of the market.
The number of software developers using the C++ programming language is
relatively small compared to the number of developers using more traditional
software development technology. The adoption of the C++ programming language by
software programmers who have traditionally used other technology requires
reorientation to significantly different programming methods, and there can be
no assurance that the acceptance of the C++ programming language will expand
beyond the early adopters of the technology. Furthermore, there can be no
assurance that potential corporate customers will be willing to make the
investment required to retrain programmers to build software using C++ rather
than structured or other object-oriented programming techniques. Many of the
Company's customers have purchased only small quantities of the Company's
products and there can be no assurance that these or new customers will broadly
implement C++ programming or purchase additional products.
In addition, the Company has several products for use in the Java market.
The Company has spent and will continue to devote resources on the development
of new and enhanced products that address the Java market. There can be no
assurance that the Company will be successful in marketing its existing or
future Java products or that the market for Java products will grow. If the
Java market fails to grow, or grows more slowly than the Company currently
anticipates, the Company's business, financial condition and results of
operations could be materially and adversely affected.
Competition. The market for the Company's products is intensely
competitive, subject to rapid change and significantly affected by new product
introductions and other market activities of industry participants. The
Company's products are targeted at the emerging market for C++ software parts
and programming tools and, to a lesser extent, at the emerging Java market. The
Company's competitors offer a variety of products and services to address these
markets. The Company believes that the principal competitive factors in this
market are product quality, flexibility, performance, functionality and
features, use of standards based technology, quality of support and service,
company reputation and price. While price is less significant than other factors
for corporate customers, price can be a significant factor for individual
programmers. Direct competitors in the C++ market include Microsoft (with its
Microsoft Foundation Classes, "MFC"), IBM, ILOG and several privately held
companies. Microsoft is a particularly strong competitor due to its large
installed base and the fact that it bundles its MFC library with its own and
other C++ compilers. Microsoft may decide in the future to devote more resources
to or broaden the functions of MFC in order to address and more effectively
compete with the functionality of the Company's products. The Company faces
direct competition in the Java market from Borland, JavaSoft (a business unit of
Sun Microsystems), Microsoft, Sybase, Symantec and other companies for its
current Java products and it expects to face significant competition in the
future from such companies with respect to other Java products the Company may
introduce. Software applications can also be developed using software parts and
programming tools in environments other than C++ or Java. Indirect
8.
<PAGE>
competitors with such offerings include Microsoft (with its ActiveX technology),
Borland, Oracle, ParcPlace-Digitalk and Powersoft (a subsidiary of Sybase). Many
of these competitors have longer operating histories, significantly greater
financial, technical, marketing and other resources, significantly greater name
recognition and larger installed bases of customers than the Company. In
addition, several database vendors, such as Informix, Oracle and Sybase are
increasingly developing robust software parts for inclusion with their database
products and may begin to compete with the Company in the future. These
potential competitors have well-established relationships with current and
potential customers and have the resources to enable them to more easily offer a
single vendor solution. Like the Company's current competitors, many of these
companies have longer operating histories, significantly greater resources and
name recognition and larger installed bases of customers than the Company. As a
result, these potential competitors may be able to respond more quickly to new
or emerging technologies and changes in customer requirements, or to devote
greater resources to the development, promotion and sale of their products than
the Company.
The Company also faces competition from systems integrators and internal
development efforts. Many systems integrators possess industry specific
expertise that may enable them to offer a single vendor solution more easily,
and already have a reputation among potential customers for offering enterprise-
wide solutions to software programming needs. There can be no assurance that
these third parties, many of which have significantly greater resources than the
Company, will not market competitive software products in the future. It is also
possible that new competitors or alliances among competitors will emerge and
rapidly acquire significant market share. The Company also expects that
competition will increase as a result of software industry consolidation.
Increased competition may result in price reductions, reduced gross margins and
loss of market share, any of which could materially and adversely affect the
Company's business, operating results and financial condition. There can be no
assurance that the Company will be able to compete successfully against current
and future competitors or that competitive pressures faced by the Company will
not materially and adversely affect its business, financial condition and
results of operations.
Limited Operating History. The Company was founded in September 1989 and
first shipped products in November 1989. Although the Company's total revenue
has increased in each of the prior thirteen quarters and the Company had net
income in most of those quarters, the Company's total revenue decreased in the
most recent quarter and the Company incurred a net loss in the quarter ended
June 30, 1996. The Company has devoted an increasing amount of resources to the
its product development, sales and marketing and technical support
organizations. The Company expects to continue to devote substantial resources
in these areas and as a result will need to recognize significant quarterly
revenue to achieve and maintain profitability. The Company's limited operating
history makes the prediction of future operating results difficult or
impossible. Although the Company has experienced significant revenue growth in
recent years, there can be no assurance that the Company will sustain such
growth, if any, or that the Company will remain profitable on a quarterly basis
or at all.
Rapid Technological Change; Dependence On New Products. The market for
software development tools is characterized by rapid technological advances,
changes in customer requirements and frequent new product introductions and
enhancements. The Company must respond rapidly to developments related to
hardware platforms, operating systems and applicable programming languages. Such
developments will require the Company to continue to make substantial product
development investments. Any failure by the Company to anticipate or respond
adequately to technological developments and customer requirements, or any
significant delays in product development or introduction, could result in a
loss of competitiveness or revenue.
9.
<PAGE>
The Company's future success will depend on its ability to continue to
enhance its current product line and to continue to develop and introduce new
products that keep pace with competitive product introductions and technological
developments, satisfy diverse and evolving customer requirements and otherwise
achieve market acceptance. There can be no assurance that the Company will be
successful in continuing to develop and market on a timely and cost-effective
basis fully functional product enhancements or new products that respond to
technological advances by others, or that its enhanced and new products will
achieve market acceptance. In addition, the Company has in the past experienced
delays in the development, introduction and marketing of new or enhanced
products. Such delays were primarily associated with increasing product
functionality and implementing new customer requirements. To date, such delays
have not resulted in a material adverse effect on the Company's business,
financial condition and results of operations. There can be no assurance that
the Company will not experience similar delays in the future. Any failure by
the Company to anticipate or respond adequately to changes in technology and
customer preferences, or any significant delays in product development or
introduction, would have a material adverse effect on the Company's business,
financial condition and results of operations.
Future Acquisitions. The Company frequently evaluates strategic
opportunities available to it and may in the future pursue acquisitions of
complementary technologies, products or businesses. Future acquisitions of
complementary technologies, products or businesses by the Company will result in
the diversion of management's attention from the day-to-day operations of the
Company's business and may include numerous other risks, including difficulties
in the integration of the operations, products and personnel of the acquired
companies. Future acquisitions by the Company may also result in dilutive
issuances of equity securities, the incurrence of debt and amortization expenses
related to goodwill and other intangible assets. Failure of the Company to
successfully manage future acquisitions may have a material adverse effect on
the Company's business, financial condition and results of operations.
Risks Of Expanding International Sales And Marketing. The Company opened
its first international sales office in Germany in January 1996. In February
1997, the Company expanded its European operations by acquiring Precision.
Precision is a distributor of the Company's software products in Germany, the
United Kingdom, France and the Benelux countries. International revenue
accounted for approximately 24% and 30% of the Company's total revenue in fiscal
1997 and the quarter ended December 31, 1997, respectively. As of December 31,
1997, the Company had 36 employees located outside of the United States. The
Company believes that in order to increase sales opportunities and profitability
it will be required to expand its international operations. The Company has
committed and continues to commit significant management time and financial
resources to developing direct and indirect international sales and support
channels. There can be no assurance, however, that the Company will be able to
maintain or increase international market demand for its products. To the extent
that the Company is unable to do so in a timely manner, the Company's
international revenue would be limited, and the Company's business, financial
condition and results of operations would be materially and adversely affected.
Risks Inherent In International Operations. International operations are
subject to inherent risks, including the impact of possible recessionary
environments in economies outside the United States, costs of localizing
products for foreign markets, longer receivables collection periods and greater
difficulty in accounts receivable collection, unexpected changes in regulatory
requirements, difficulties and costs of staffing and managing foreign
operations, reduced protection for intellectual property rights in some
countries, potentially adverse tax consequences, and political and economic
instability. There can be no assurance that the Company will be able to sustain
or increase international revenue from licenses or from maintenance and service,
or that the foregoing factors will not have a material adverse effect on the
10.
<PAGE>
Company's future international revenue and, consequently, on the Company's
business, financial condition and results of operations. The Company's direct
international revenue is generally denominated in local currencies. As a result
of recent fluctuations in international exchange rates, the Company's Board of
Directors has authorized the Company to enter into forward exchange contracts to
minimize the risks associated with such fluctuations. Although exposure to
currency fluctuations to date has not been material, there can be no assurance
that fluctuations in currency exchange rates in the future will not have a
material adverse impact on international revenue and thus the Company's
business, financial condition and results of operations.
Dependence Upon Key Personnel. The Company's future performance depends in
significant part upon the continued service of its key technical, sales and
senior management personnel, none of whom is bound by an employment agreement.
The Company believes that the technological and creative skills of its personnel
are essential to establishing and maintaining a leadership position,
particularly in light of the fact that its intellectual property, once sold to
the public market, is easily replicated. The loss of the services of one or
more of the Company's executive officers or key technical personnel would have a
material adverse effect on the Company's business, financial condition and
results of operations. In particular, the services of Thomas Keffer and Michael
Scally, the Company's President and Chief Executive Officer, and Chief Operating
Officer, respectively, would be difficult to replace. The Company has key person
life insurance policies in the amount of $1.0 million on each of Dr. Keffer and
Mr. Scally. The Company's future success also depends on its continuing ability
to attract and retain highly-qualified technical, sales and managerial
personnel. In the past, the Company has experienced some difficulty in
attracting key personnel. Competition for such personnel is intense, and there
can be no assurance that the Company can retain its key technical, sales and
managerial employees or that it can attract, assimilate or retain other highly
qualified technical, sales and managerial personnel in the future.
Variability Of Sales Cycles. The Company distributes its products through
two different direct sales channels, a telesales force and a field sales force,
each of which is subject to a variable sales cycle. Products sold by the
Company's telesales force may be sold after a single phone call or may require
several weeks of education and negotiation before a sale is made. As such, the
sales cycle associated with telesales typically ranges from a few days to two
months. On the other hand, the purchase of products from the Company's field
sales force is often an enterprise-wide decision and may require the sales
person to provide a significant level of education to prospective customers
regarding the use and benefits of the Company's products. For these and other
reasons, the sales cycle associated with the sale of the Company's products
through its field sales force typically ranges from two to six months and is
subject to a number of significant delays over which the Company has little or
no control. Due to the foregoing factors, quarterly revenue and operating
results can be variable and are difficult to forecast, and the Company believes
that period-to-period comparisons of quarterly revenue are not necessarily
meaningful and should not be relied upon as an indicator of future revenue.
Proprietary Rights, Risks Of Infringement And Source Code Release. The
Company relies primarily on a combination of copyright, trademark and trade
secret laws, confidentiality procedures and contractual provisions to protect
its proprietary rights. The Company also believes that factors such as the
technological and creative skills of its personnel, new product developments,
frequent product enhancements, name recognition and reliable product maintenance
are essential to establishing and maintaining a technological leadership
position. The Company seeks to protect its software, documentation and other
written materials under trade secret and copyright laws, which afford only
limited protection. The Company currently has one patent application pending in
the United States. There can be no assurance that the Company's pending patent
application, whether or not being currently challenged by applicable
governmental patent examiners, will be issued with the scope of the claims
11.
<PAGE>
sought by the Company, if at all. Furthermore, there can be no assurance that
others will not develop technologies that are similar or superior to the
Company's technology or design around the Company's pending patent. Despite the
Company's efforts to protect its proprietary rights, unauthorized parties may
attempt to copy aspects of the Company's products or to obtain and use
information that the Company regards as proprietary. The nature of many of the
Company's products requires the release of the source code to all customers. As
such, policing unauthorized use of the Company's products is difficult, and
while the Company is unable to determine the extent to which piracy of its
software products exists, software piracy can be expected to be a persistent
problem. In addition, the laws of some foreign countries do not protect the
Company's proprietary rights as fully as do the laws of the United States. There
can be no assurance that the Company's means of protecting its proprietary
rights in the United States or abroad will be adequate or that competition will
not independently develop similar technology.
The Company is not aware that it is infringing any proprietary rights of
third parties. There can be no assurance, however, that third parties will not
claim infringement by the Company of their intellectual property rights. The
Company expects that software product developers will increasingly be subject to
infringement claims as the number of products and competitors in the Company's
industry segment grows and the functionality of products in different industry
segments overlaps. Any such claims, with or without merit, could be time
consuming to defend, result in costly litigation, divert management's attention
and resources, cause product shipment delays or require the Company to enter
into royalty or licensing agreements. Such royalty or licensing agreements, if
required, may not be available on terms acceptable to the Company, if at all. In
the event of a successful claim of product infringement against the Company and
failure or inability of the Company to license the infringed or similar
technology, the Company's business, financial condition and results of
operations would be materially and adversely affected.
Uncertainty Of The Effects Of The Year 2000 On Computer Programs And
Systems. Many currently installed computer systems and software programs were
designed to use only a two digit date field. These date code fields will need to
accept four digit entries to distinguish 21st century dates from 20th century
dates. Until the date fields are updated, the systems and programs could fail or
give erroneous results when referencing dates following December 31, 1999. Such
failure or errors could occur prior to the actual change in century. The Company
relies on computer applications to manage and monitor its accounting, sales,
development and administrative functions. In addition, the Company's customers,
suppliers and service providers (particularly financial institutions) are
reliant upon computer applications, some of which may contain software that may
fail as a result of the upcoming change in century, with respect to functions
that materially affect their interactions with the Company. While the Company
does not believe its computer systems or applications currently in use will be
adversely affected by the upcoming change in century, the Company has not made
an assessment as to whether any of its customers, suppliers or service providers
will be so affected. Failure of the Company's software or that of its customers,
suppliers or service providers could have a material adverse impact on the
Company's business, financial condition and result of operations.
Product Liability. The Company's license agreements with its customers
typically contain provisions designed to limit the Company's exposure to
potential product liability claims. It is possible, however, that the
limitation of liability provisions contained in the Company's license agreements
may not be effective under the laws of certain jurisdictions. Although the
Company has not experienced any product liability claims to date, the sale and
support of products by the Company may entail the risk of such claims, and there
can be no assurance that the Company will not be subject to such claims in the
future. A successful product liability claim brought against the Company could
have a material adverse effect upon the Company's business, financial condition
and results of operations.
12.
<PAGE>
Risk Of Product Defects. Software products as complex as those offered by
the Company frequently contain errors or failures, especially when first
introduced or when new versions are released. Also, new products or
enhancements may contain undetected errors, or "bugs," or performance problems
that, despite testing, are discovered only after a product has been installed
and used by customers. There can be no assurance that such errors or performance
problems will not be discovered in the future, causing delays in product
introduction and shipments or requiring design modifications that could
materially and adversely affect the Company's competitive position and operating
results. The Company's products are typically intended for use in applications
that may be critical to a customer's business. As a result, the Company expects
that its customers and potential customers have a greater sensitivity to product
defects than the market for software products generally. Although the Company
has not experienced material adverse effects resulting from any such errors to
date, there can be no assurance that, despite testing by the Company and by
current and potential customers, errors will not be found in new products or
releases after commencement of commercial shipments, resulting in loss of
revenue or delay in market acceptance, diversion of development resources, the
payment of monetary damages, damage to the Company's reputation, or increased
service and warranty costs, any of which could have a material adverse effect
upon the Company's business, financial condition and results of operations.
Possible Volatility of Stock Price. The Company's stock price has
fluctuated substantially since its initial public offering in November 1996.
The trading price of the Company's Common Stock is subject to significant
fluctuations in response to variations in quarterly operating results, the gain
or loss of significant orders, changes in earning estimates by analysts,
announcements of technological innovations or new products by the Company or its
competitors, general conditions in the software and computer industries and
other events or factors. In addition, the stock market in general has
experienced extreme price and volume fluctuations which have affected the market
price for many companies in industries similar or related to that of the Company
and which have been unrelated to the operating performance of these companies.
These market fluctuations have adversely affected and may continue to adversely
affect the market price of the Company's Common Stock.
Antitakeover Effects of Certificate of Incorporation, Bylaws and
Delaware Law. The Company's Board of Directors has the authority to issue up to
5,000,000 shares of Preferred Stock and to determine the price, rights,
preferences, privileges and restrictions, including voting rights, of those
shares without any further vote or action by the stockholders. The Preferred
Stock could be issued with voting, liquidation, dividend and other rights
superior to those of the Common Stock. The rights of the holders of Common
Stock will be subject to, and may be adversely affected by, the rights of the
holders of any Preferred Stock that may be issued in the future. The issuance
of Preferred Stock, while providing desirable flexibility in connection with
possible acquisitions and other corporate purposes, could have the effect of
making it more difficult for a third party to acquire a majority of the
outstanding voting stock of the Company. Pursuant to the Company's Certificate
of Incorporation, the Company has instituted a classified Board of Directors.
This and certain other provisions of the Company's Certificate of Incorporation
and certain provisions of the Company's Bylaws and of Delaware law, could delay
or make more difficult a merger, tender offer or proxy contest involving the
Company.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares by
the Selling Stockholders.
13.
<PAGE>
DIVIDEND POLICY
The Company has never paid any cash dividends on its capital stock. The
Company currently intends to retain any future earnings to finance the growth
and development of its business and therefore does not anticipate paying any
cash dividends in the foreseeable future.
14.
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth the names of the Selling Stockholders, the
number of shares of Common Stock owned beneficially by the Selling Stockholders
as of March 31, 1998 and the number of Shares which may be offered pursuant to
this Prospectus. The Selling Stockholders may offer all, some or none of their
Shares.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY
OWNED PRIOR TO SHARES BEING SHARES BENEFICIALLY OWNED AFTER
NAME OFFERING OFFERED OFFERING(1)
- ------------------- ---------------------------- ------------------- -----------------------------------
NUMBER PERCENT(2) NUMBER PERCENT(2)
------------- ------------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
M. Scot Wingo 550,615 5.4 100,000 450,615 4.4
Aris Antanas Buinevicius 550,615 5.4 100,000 450,615 4.4
R. Dean Hallman 550,615 5.4 30,000 520,615 5.1
</TABLE>
_______________________
* Less than one percent
(1) Assumes the sale of all Shares offered hereby.
(2) Applicable percentage of ownership is based on 10,167,666 shares of Common
Stock outstanding (net of treasury shares) as of March 31, 1998.
Each of the Selling Stockholders held shares of Stingray Software, Inc., a
North Carolina corporation ("Stingray"). Each of the Selling Stockholders were
employees of Stingray. On February 27, 1998, SR Acquisition Corp. ("Merger
Sub"), a wholly owned subsidiary of the Company merged with and into Stingray
(the "Merger"), and Stingray became a wholly owned subsidiary of the Company,
all pursuant to an Agreement and Plan of Merger and Reorganization between the
Company, Merger Sub and Stingray dated as of January 19, 1998 (the "Merger
Agreement"). Pursuant to the Merger Agreement, each of the Selling
Stockholders, in exchange for their shares in Stingray, received the Shares set
forth in the table. Each of the Selling Stockholders that were employees of
Stingray have been offered employment with the Company.
PLAN OF DISTRIBUTION
The Company is registering the Shares offered by the Selling Stockholders
hereunder pursuant to covenants under the Merger Agreement and contractual
registration rights contained in a Registration Rights Agreement by and among
the Company and the Selling Stockholders, dated February 27, 1998 (the
"Registration Rights Agreement"). Sales may be made on the Nasdaq National
Market or in private transactions or in a combination of such methods of sale,
at fixed prices that may be changed, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The Selling Stockholders and any persons who participate in the
distribution of the Shares offered hereby may be deemed to be underwriters
within the meaning of the Act, and any discounts, commissions or concessions
received by them and any provided pursuant to the sale of the Shares by them
might be deemed to be underwriting discounts and commissions under the Act. The
Selling Stockholders will be subject to the applicable provisions of the
Exchange Act, and the rules and
15.
<PAGE>
regulations thereunder, including without limitation, Rules 10b-2, 10b-6 and
10b-7, which provisions may limit the timing of purchases and sales of any of
the Common Stock by the Selling Stockholders.
In order to comply with the securities laws of certain states, if
applicable, the Shares may be sold in such jurisdictions only through registered
or licensed brokers or dealers. In addition, in certain states the Shares may
not be sold unless it has been registered or qualified for sale or an exemption
from registration or qualification requirements is available and is complied
with.
The Company has agreed in the Merger Agreement and the Registration Rights
Agreement to register some of the shares of Common Stock received by the Selling
Stockholders pursuant to the Merger Agreement under applicable Federal and state
securities laws. Pursuant to the Registration Rights Agreement, the Company has
filed a registration statement related to the Shares offered hereby and has
agreed pursuant to the Registration Rights Agreement to keep such registration
statement effective until the earliest of (i) thirty days following the
effectiveness of this registration statement, (ii) the satisfaction of all
requirements to sell all such Shares under Rule 144 during any ninety (90) day
period, or (iii) the sale of all the securities registered thereunder. The
Company will pay substantially all of the expenses incident to the offering and
sale of the Common Stock to the public, other than commissions, concessions and
discounts of underwriters, dealers or agents. Such expenses (excluding such
commissions and discounts) are estimated to be $40,000. The Registration Rights
Agreement provides for cross-indemnification of the Selling Stockholders and the
Company to the extent permitted by law for losses, claims, damages, liabilities
and expenses arising, under certain circumstances, out of any registration of
the Common Stock.
LEGAL MATTERS
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company by Cooley Godward LLP, Menlo Park, California.
EXPERTS
The financial statements and schedules of Rogue Wave Software, Inc. as of
September 30, 1997 and 1996 and for each of the years in the three-year period
ended September 30, 1997, have been incorporated by reference in this Prospectus
in reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein, upon the authority of said
firm as experts in accounting and auditing.
16.
<PAGE>
===============================================================================
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED
IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
OTHER INFORMATION AND REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE 230,000 SHARES
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN ROGUE WAVE SOFTWARE, INC.
WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH COMMON STOCK
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO,
OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE _______________
SUCH OFFER OR SOLICITATION. THE DELIVERY OF
THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT PROSPECTUS
THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME _______________
SUBSEQUENT TO THE DATE HEREOF.
_____________ ___, 1998
________________________
TABLE OF CONTENTS
_______________________
PAGE
Available Information........... 2
Additional Information.......... 2
Incorporation of Certain
Documents by Reference......... 2
The Company..................... 4
Risk Factors.................... 6
Use of Proceeds................. 13
Dividend Policy................. 14
Selling Stockholders............ 15
Plan of Distribution............ 15
Legal Matters................... 16
Experts......................... 16
___________________
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses, other than the underwriting
discounts and commissions, payable by the Registrant in connection with the sale
of the Common Stock being registered. All the amounts shown are estimates
except for the registration fee.
<TABLE>
<S> <C>
Registration fee....................................... $ 653
Legal fees and expenses................................ $30,000
Accounting fees and expenses........................... $ 2,000
Miscellaneous.......................................... $ 7,347
TOTAL.................................................. $40,000
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Under Section 145 of the Delaware General Corporation Law, the Registrant has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act of
1933, as amended (the "Securities Act").
The Registrant's Certificate of Incorporation, as amended provides for the
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its stockholders. These provisions
do not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such an 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
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
The Registrant has entered into agreements with its directors and executive
officers that require the Registrant to indemnify such persons against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the
Registrant or any of its affiliated enterprises, provided such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER Description of Document
-----------------------
<C> <S>
(1)2.1 Agreement and Plan of Reorganization between Registrant, Inmark Development
Corporation and RW Acquisition, Inc., dated as of September 19, 1995.
(1)2.2 Agreement and Plan of Merger between the Registrant and Rogue Wave Software, Inc., an
Oregon corporation, dated as of November 21, 1996.
(2)2.3 Agreement and Plan of Merger and Reorganization among Rogue Wave Software, Inc., a
Delaware corporation, SR Acquisition Corp., a North Carolina corporation, Stingray
Software, Inc., a North Carolina corporation and the shareholders of Stingray
Software, Inc., dated as of January 19, 1998.
(3)2.4 Articles of Merger and Plan of Merger dated February 27, 1998, filed with the
Secretary of State of North Carolina on February 27, 1998.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Cooley Godward LLP, Reference is made to Exhibit 5.1.
24.1 Power of Attorney (reference is made to signature page).
</TABLE>
___________
(1) Incorporated by reference to an exhibit bearing the same number in the
Registrant's Registration Statement on Form SB-2 (No. 333-13517).
(2) Incorporated by reference to exhibit 2.1 to the Registrant's Report on Form
8-K filed with the SEC on March 9, 1998.
(3) Incorporated by reference to exhibit 2.2 to the Registrant's Report on Form
8-K filed with the SEC on March 9, 1998.
(b) Financial Statement Schedules
Schedules not listed above have been omitted because the information to be set
forth therein is not applicable or is shown in the financial statements or notes
thereto.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-
effective amendment to this registration statement to include any material
information with respect to the plan of distribution not
II-2
<PAGE>
previously disclosed in the registration statement or any material change to
such information in the registration statement:
(i) To include any prospectus required by Section 10(a)(3) of The
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, 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.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 15, 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.
II-3
<PAGE>
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of the 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 purposes 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boulder, County of King, State of Colorado on the
21st day of May, 1998.
By: /s/ Michael Scally
-------------------------------
Michael Scally
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael Scally and Robert M. Holburn, Jr.
and each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place, and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments, exhibits thereto and other documents in connection
therewith) to this Registration Statement and any subsequent registration
statement filed by the registrant pursuant to Securities and Exchange Commission
Rule 462, which relates to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the require of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas Keffer Chairman, Chief Executive Officer May 21, 1998
- ------------------------------------- and Director
Thomas Keffer (Principal Executive Officer)
/s/ Michael Scally President, Chief Operating Officer May 21, 1998
- ------------------------------------- and Director
Michael Scally
/s/ Robert M. Holburn, Jr. Chief Financial Officer and Secretary May 21, 1998
- ------------------------------------- (Principal Financial and Accounting
Robert M. Holburn, Jr. Officer)
Thomas M. Atwood Director May 21, 1998
- -------------------------------------
Thomas M. Atwood
/s/ Louis C. Cole Director May 21, 1998
- -------------------------------------
Louis C. Cole
/s/ Richard P. Magnuson Director May 21, 1998
- -------------------------------------
Richard P. Magnuson
/s/ Thomas H. Peterson Director May 21, 1998
- -------------------------------------
Thomas H. Peterson
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
<C> <S>
(1)2.1 Agreement and Plan of Reorganization between Registrant, Inmark Development
Corporation and RW Acquisition, Inc., dated as of September 19, 1995.
(1)2.2 Agreement and Plan of Merger between the Registrant and Rogue Wave Software, Inc., an
Oregon corporation, dated as of November 21, 1996.
(2)2.3 Agreement and Plan of Merger and Reorganization among Rogue Wave Software, Inc., a
Delaware corporation, SR Acquisition Corp., a North Carolina corporation, Stingray
Software, Inc., a North Carolina corporation and the shareholders of Stingray
Software, Inc., dated as of January 19, 1998.
(3)2.4 Articles of Merger and Plan of Merger dated February 27, 1998, filed with the
Secretary of State of North Carolina on February 27, 1998.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Cooley Godward LLP, Reference is made to Exhibit 5.1.
24.1 Power of Attorney (reference is made to signature page).
</TABLE>
___________
(1) Incorporated by reference to an exhibit bearing the same number in the
Registrant's Registration Statement on Form SB-2 (No. 333-13517).
(2) Incorporated by reference to exhibit 2.1 to the Registrant's Report on Form
8-K filed with the SEC on March 9, 1998.
(3) Incorporated by reference to exhibit 2.2 to the Registrant's Report on Form
8-K filed with the SEC on March 9, 1998.
<PAGE>
EXHIBIT 5.1
May 22, 1998
RogueWave Software, Inc.
5500 Flatiron Parkway
Boulder, Colorado 80301
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Rogue Wave Software, Inc. (the "Company") of a Registration
Statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 230,000 shares of the
Company's Common Stock, $.001 par value, (the "Shares").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, the Company's Certificate of Incorporation and Bylaws, as
amended to date, and such other documents, records, certificates, memoranda and
other instruments as we deem necessary as a basis for this opinion. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement and related Prospectus, will be validly issued, fully paid, and
nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward llp
By: /s/ Mark P. Tanoury
-------------------
Mark P. Tanoury
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors
RogueWave Software, Inc.:
We consent to incorporation by reference in this registration statement on Form
S-3 dated May 22, 1998 of our report dated November 4, 1997, relating to the
consolidated balance sheets of Rogue Wave Software, Inc. as of September 30,
1997 and 1996, and the related consolidated statements of operations,
stockholders' equity, and cash flows for each of the years in the three-year
period ended September 30, 1997, which appears in Rogue Wave Software, Inc.'s
annual report on Form 10-K filed pursuant to the Securities Exchange Act of
1934.
KPMG PEAT MARWICK LLP
/s/KPMG Peat Marwick LLP
Portland, Oregon
May 20, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Rogue Wave Software, Inc. and subsidiaries on Form S-3 of our report dated
January 26, 1998 on our audit of the financial statements of Stingray
Software, Inc. as of December 31, 1997 and for the year then ended which
report is included in the Current report on Form 8-K/A of Rogue Wave Software,
Inc. filed with the Securities and Exchange Commission on May 12, 1998 and our
report dated January 26, 1998 on our audits of the financial statements of
Stingray Software, Inc. as of December 31, 1997 and 1996 and for the years
then ended which report is included in the Current Report on Form 8-K/A of
Rogue Wave Software, Inc. filed with the Securities and Exchange Commission on
May 21, 1998.
Coopers & Lybrand LLP
/s/ Coopers & Lybrand LLP
Raleigh, North Carolina
May 21, 1998
