As filed with the Securities and Exchange Commission on April 7, 1999.
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DATAWATCH CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 02-0405716
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
900 Chelmsford Street
Tower 3, 5th Floor
Lowell, Massachusetts 01851
(Address of Principal Executive Offices) (Zip Code)
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Datawatch Corporation 1996 Stock Plan
(Full Title of the Plan)
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Bruce R. Gardner
President and Chief Executive Officer
Datawatch Corporation
900 Chelmsford Street
Tower 3, 5th Floor
Lowell, Massachusetts 01851
(Name and Address of Agent for Service)
(978) 441-2200
(Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
William B. Simmons, Jr., Esq.
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
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<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE><CAPTION>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered Share Price Fee
- ------------------------------------------------- --------------------- --------------- ------------------- ---------------------
DATAWATCH CORPORATION 1996 STOCK PLAN
<S> <C> <C> <C> <C>
Common Stock (par value $.01 per share) 250,000 shares(1) $3.03125(1) $757,812.50(1) $200.06(2)
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The exercise price of options issued pursuant to the 1996 Stock Plan is
determined at the time of grant. None of the shares being registered
hereunder are subject to outstanding options. Accordingly, the proposed
maximum offering price per share of $3.03125 per share, which is the
average of the high and low prices of the Common Stock of the Registrant
reported on the Nasdaq National Market System on April 4, 2000, is set
forth solely for purposes of calculating the filing fee pursuant to Rule
457(c) and (h).
(2) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This Registration Statement registers additional securities of the same
class as other securities for which Registration Statement No. 333-39627 on Form
S-8 as filed with the Securities and Exchange Commission on November 6, 1997
relating to the Datawatch Corporation 1996 Stock Plan are effective. Pursuant to
General Instruction E, the contents of the above-listed Registration Statements
are incorporated by reference herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Pursuant to General Instruction E, the information contained in Items 4
through 7 and Item 9 of Part II of the Registration Statement No. 333-39627 on
Form S-8, as it pertains to the 1996 Stock Plan is incorporated by reference
herein.
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Datawatch Corporation (the
"Registrant") (File No. 0-19660) with the Commission pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), are incorporated in this Registration
Statement by reference as of their respective dates:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1999 filed pursuant to the Exchange Act which contains
audited financial statements for the fiscal year ended September 30, 1999.
<PAGE>
(b) All other documents filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report on Form 10-K referred to in (a) above.
(c) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement on Form S-1,
SEC File No. 33-46290, as amended, which was incorporated by reference in the
Registrant's Registration Statement on Form 8-A filed pursuant to Section 12(g)
of the Exchange Act.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
Item 8. EXHIBITS.
Exhibit No. Description of Exhibit
----------- ----------------------
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed
herewith).
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained
in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP (filed herewith).
24.1 Power of Attorney (included as part of the signature
page to this Registration Statement).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Datawatch Corporation, certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Lowell, Commonwealth of
Massachusetts, on this 7th day of April, 2000.
DATAWATCH CORPORATION
By: /s/ Bruce R. Gardner
-----------------------------------
Bruce R. Gardner
President, Chief Executive Officer
and Director
POWER OF ATTORNEY
We, the undersigned officers and directors of Datawatch Corporation,
hereby severally constitute and appoint Bruce R. Gardner and Betsy J. Hartwell,
and each of them singly, our true and lawful attorneys, with full power to them
and each of them singly, to sign for us in our names in the capacities indicated
below, any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable Datawatch Corporation, to comply
with the provisions of the Securities Act of 1933, as amended, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or
any of them, to said Registration Statement and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE><CAPTION>
SIGNATURE TITLE(S) DATE
--------- -------- ----
<S> <C> <C>
/s/ Bruce R. Gardner President, Chief Executive Officer and Director April 7, 2000
- --------------------------------------- (Principal Executive Officer)
Bruce R. Gardner
/s/ Betsy J. Hartwell Vice President Finance, Chief Financial Officer and April 7, 2000
- --------------------------------------- Treasurer (Principal Financial and Accounting Officer)
Betsy J. Hartwell
/s/ Jerome Jacobson Director April 7, 2000
- ---------------------------------------
Jerome Jacobson
/s/ David T. Riddiford Director April 7, 2000
- ---------------------------------------
David T. Riddiford
/s/ Terry W. Potter Director April 7, 2000
- ---------------------------------------
Terry W. Potter
/s/ Don M. Lyle Director April 7, 2000
- ---------------------------------------
Don M. Lyle
</TABLE>
<PAGE>
Exhibit Index
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Exhibit No. Description of Exhibit
----------- ----------------------
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained in
Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included as part of the signature
page to this Registration Statement)
EXHIBIT 5.1
OPINION OF TESTA, HURWITZ & THIBEAULT, LLP
April 7, 2000
Datawatch Corporation
900 Chelmsford Street
Tower 3, 5th Floor
Lowell, MA 01851
Re: Registration Statement on Form S-8 Relating to the 1996 Stock
Plan, as amended, of Datawatch Corporation (referred to as the
"Plan")
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Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by Datawatch Corporation (the
"Company") on the date hereof with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, relating to an aggregate of 250,000
shares of Common Stock, par value $.01 per share, of the Company issuable
pursuant to the Plan (the "Shares").
We are counsel to the Company and are familiar with the proceedings of
its stockholders and Board of Directors. We have examined original or certified
copies of the Company's Restated Certificate of Incorporation, as amended, the
Company's by-laws, as amended, the corporate records of the Company to the date
hereof, and such other certificates, documents, records and materials as we have
deemed necessary in connection with this opinion letter.
We are members only of the Bar of the Commonwealth of Massachusetts and
are not experts in, and express no opinion regarding, the laws of any
jurisdiction other than the Commonwealth of Massachusetts and the United States
of America, and the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares issued or proposed to be issued by the Company pursuant to the Plan will
be, upon receipt of the consideration provided for in the Plan, validly issued,
fully paid and nonassessable after issuance of such Shares in accordance with
the terms of the Plan.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Datawatch Corporation on Form S-8 of our report dated November 19, 1999
(December 27, 1999 as to Note 8) appearing in the Annual Report on Form 10-K of
Datawatch Corporation for the year ended September 30, 1999.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
April 7, 2000
