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As filed with the Securities and Exchange Commission on May 5, 2000
Registration No. 333-75855
==========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DATAWARE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-1232140
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
ONE CANAL PARK
CAMBRIDGE, MASSACHUSETTS 02141
(617) 621-0820
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
MICHAEL GONNERMAN
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
Dataware Technologies, Inc.
One Canal Park
Cambridge, Massachusetts 02141
(617) 621-0820
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
with copies to:
MATTHEW C. DALLETT
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-0100
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
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, other than securities offered only in connection with dividend or interest
reinvestment plans, 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 a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering.
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
check the following box.
CALCULATION OF REGISTRATION FEE
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Title of each Class Amount Proposed Maximum Proposed Maximum Amount of
of Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered Per Share (1) Price (1) Fee(2)
Common Stock, $.01 par value per share.......... 158,330 $3.375 $534,364 $141
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(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933. The proposed
maximum offering price per share indicated equals the average of the high
and low sale prices on May 4, 2000, as reported by the Nasdaq National
Market.
(2) Computed on the basis of the offering price of the additional securities to
be offered pursuant to this amendment in accordance with Rule 457(b) under
the Securities Act of 1933.
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.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 5, 2000
PROSPECTUS
______________________
358,330 Shares
DATAWARE TECHNOLOGIES, INC.
Common Stock
______________________
Our common stock trades on the Nasdaq National Market under the symbol
"DWTI." On May 4, 2000, the last reported sale price of our common stock on the
Nasdaq National Market was $3.50 per share.
We previously issued 200,000 shares of our common stock in connection with
our acquisition of Sovereign Hill Software, Inc. in December 1998. In May 1999,
we issued to NEC USA, Inc. an option to purchase 100,000 shares of our common
stock in exchange for a technology license and in January 1996, we issued an
option to purchase 58,330 shares of our common stock to The Parthenon Group,
Inc. in connection with a consulting agreement. This prospectus relates to the
resale of all those shares.
The selling stockholders listed on page 9 of this prospectus are offering the
shares of common stock described in this prospectus and will receive all the
proceeds from any sales of these shares.
The selling stockholders will pay all brokerage fees and commissions and
similar sale-related expenses. We are paying all expenses relating to the
registration of the shares with the Securities and Exchange Commission.
_____________________
AN INVESTMENT IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. YOU SHOULD
CAREFULLY READ AND CONSIDER THE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS
PROSPECTUS.
______________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_____________________
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDER MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SEC IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO
SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALES IS NOT PERMITTED.
The date of this Prospectus is ___________, 2000.
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TABLE OF CONTENTS
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ABOUT DATAWARE TECHNOLOGIES, INC..................................3
RISK FACTORS......................................................4
NOTE REGARDING FORWARD-LOOKING STATEMENTS.........................9
USE OF PROCEEDS...................................................9
SELLING STOCKHOLDERS..............................................9
PLAN OF DISTRIBUTION.............................................10
LEGAL MATTERS....................................................11
EXPERTS..........................................................11
WHERE YOU CAN FIND MORE INFORMATION..............................11
</TABLE>
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ABOUT DATAWARE TECHNOLOGIES, INC.
Early in 1999, we announced a program to reposition and restructure the
company as an e-Business solutions provider and began making strategic and
organizational changes toward that goal. We had previously been focused on
providing software for enterprise information access, or "knowledge management,"
and professional electronic publishing applications, as well as multimedia
services for CD-ROM and web-based publishing. We are now a full service
provider, working with our clients to create e-Business solutions that
efficiently translate their business to a web-oriented model by incorporating
the client's information with our technology and methodology to deliver
solutions built around the web, such as portals, e-commerce sites and web-based
training. We also continue to develop interactive multimedia, intelligent
information retrieval, distributed media and knowledge management
solutions.
We were founded in 1988. You can find additional information about us in
our filings with the SEC. See "Where You Can Find More Information" on page 11.
Our principal offices are located at One Canal Park, Cambridge,
Massachusetts 02141 and our main telephone number is (617) 621-0820.
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RISK FACTORS
If you purchase shares of our common stock, you will take on financial
risk. In deciding whether to invest, you should carefully consider the following
risk factors, the information contained in this prospectus and the other
information to which we have referred you. It is especially important to keep
these risk factors in mind when you read forward-looking statements appearing in
this prospectus.
WE MAY HAVE DIFFICULTY TRANSITIONING TO AN E-BUSINESS SOLUTIONS MODEL, WHICH
COULD AFFECT OUR ABILITY TO MEET OUR LONG-TERM GOALS.
During 1999, we began to transition our business and our corporate
organization to an e-business solutions model. This model involves an extensive
personnel reorganization, as well as new sales and marketing strategies. We
have made substantial progress in our efforts to position the company as a full
service provider in the e-business market by expanding our e-business solutions
customer base and adding new executives experienced in this area to the
management team. However, we may not be able to successfully implement the e-
business solutions model. Some of the risks associated with our revised
approach include:
. we may not effectively complete the necessary reorganization of our
personnel;
. we may not be able to develop appropriate new distribution channels capable
of delivering these offerings economically and on time; and
. revenues from our older product lines may decline more rapidly than they
can be replaced by revenues from newer offerings.
WE EXPECT TO INCUR FUTURE OPERATING LOSSES AND MAY NEVER BECOME PROFITABLE.
In recent years we have had significant operating losses, and we expect losses
to continue for the next several years. During the last three years, we have
incurred cumulative losses of approximately $10.9 million. We expect our
operating expenses and capital expenditures to increase significantly as we
complete our transition to an e-business solutions provider. We cannot be
certain that we will become profitable after we implement the e-business
solutions model There are a number of important factors that could adversely
affect our profitability, resulting in higher than anticipated costs and/or
lower than anticipated revenues including:
. increasing emphasis on providing solutions in the knowledge management
field;
. inherent risks and costs of providing customer-specific solutions,
including uncertainty of customer acceptance;
. increased employment costs stemming from the high level of competition for
qualified personnel in the software industry; and
. reliance on third parties for supply of certain product components.
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If our revenue does not increase as expected or operating expenditures exceed
our projections, our business, prospects, financial condition and results of
operations could be adversely affected.
IF WE CANNOT RAISE ADDITIONAL CAPITAL, WE MAY NOT BE ABLE TO EXPAND, OR WE MAY
HAVE TO CUT BACK OUR OPERATIONS.
Our liquid assets and anticipated cash from operations and borrowings may
be insufficient to provide for our growth for the near future or even for our
operations at our current rate beyond the first half of 2000. Therefore, we are
pursuing various alternatives available to us to raise additional capital during
the first half of 2000 to meet our working capital needs and to support a more
aggressive expansion of our business. We have made no decisions on the amount
that we would raise, the type of securities that might be offered, or on any
other terms of any possible financing. There is no assurance that we will be
able to raise sufficient debt or equity capital on terms that we consider
acceptable, if at all. If we raise additional capital through the sale of
equity, or securities convertible into equity, your proportionate ownership in
Dataware may be diluted. In addition to or as an alternative to raising
capital, we may be required to cut back operations to extend our resources. In
general, factors such as the following may cause liquidity problems in the
future:
. availability of funds on acceptable terms;
. unanticipated changes in business conditions or delays in market acceptance
of our offerings;
. expansion of operations or research and development activities;
. development of new distribution channels;
. competitive and technological developments; and
. future acquisitions of businesses and/or product rights.
OUR OPERATING RESULTS FLUCTUATE FROM QUARTER TO QUARTER, MAKING THEM DIFFICULT
TO PREDICT, WHICH MAY RESULT IN A MATERIAL VARIATION BETWEEN FORECASTED
QUARTERLY RESULTS AND ACTUAL RESULTS.
Our shift in business emphasis to an e-business solutions model has
resulted in increased development costs and longer sales cycles. Also, a
disproportionately large percentage of quarterly sales occur in the closing
weeks of each quarter, making any prediction of quarterly results before the end
of a quarter potentially unreliable. Given these variations, we cannot assure
you that we will be consistently profitable during any particular period. A
shortfall in revenues during any quarter could cause our earnings for that
quarter to fall below expectations, which could adversely impact the market
price of our stock.
IF WE ARE UNABLE TO KEEP PACE WITH RAPID TECHNOLOGICAL CHANGES IN THE MARKET FOR
OUR PRODUCTS AND SERVICES, WE MAY MISS MARKET OPPORTUNITIES, WHICH COULD REDUCE
SALES.
The market for e-business solutions in general, and information management
and distribution products and services in particular, continues to change
rapidly. We must keep up with changing technology and customer demands,
including technologies and features introduced by our competitors, or we will
not be successful.
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As with any new product, our most innovative offerings may be subject to
delays in development, "debugging," production, or customization, and will
require periods of adjustment to ensure that they are meeting customer
requirements. These may cause us to miss market opportunities and future sales.
WE FACE INTENSE COMPETITION. IF WE CANNOT DEVELOP NEW, IMPROVED OR MORE COST
EFFECTIVE PRODUCTS AND SOLUTIONS AS QUICKLY AS OUR COMPETITORS, WE WILL LOSE
SALES.
The markets in which we do business are intensely competitive. Increased
competition may result in price reductions, reduced gross margins, lost
business, and loss of market share, any of which could have a material adverse
effect on our business, operating results and financial condition.
Our competition varies by:
. geography (North America, Europe, Asia);
. type of customer (commercial, corporate, government agency);
. market segment (financial services, high technology, etc); and
. application category (from high-end, complete software and service
solutions to pure software sales).
Our competitors include traditional information retrieval competitors, as
well as very significant companies in various areas of the e-business solutions
market. It is likely that new competitors will enter these markets as they
continue to grow. Furthermore, as the markets grow, a number of companies could
attempt to increase their presence in our markets by acquiring or forming
strategic alliances with our competitors or by introducing products or services
specifically designed for these markets. Compared to us, many of our current
and future competitors have longer operating histories and significantly greater
financial, technical, sales, marketing and other resources.
WE ARE DEPENDENT ON KEY PERSONNEL, WHOSE LOSS COULD DELAY OUR PRODUCT
DEVELOPMENT INITIATIVES OR ABILITY TO MARKET TO CUSTOMERS.
Our success depends on our ability to attract, motivate and retain highly
skilled technical, management, sales and marketing personnel. Competition for
personnel in the computer software and services industry is
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intense, and we are always at risk of losing key personnel to our competitors.
We expect to see higher than average voluntary and involuntary employee
turnover, with attendant costs, as the transition to an e-business solution
provider is completed. In addition, we may not be able to attract and retain
additional highly skilled employees, which could impair our ability to
adequately manage and complete existing projects or develop and introduce
competitive products.
SINCE A LARGE PORTION OF OUR REVENUES ARE GENERATED OUTSIDE THE UNITED STATES,
CHANGES IN INTERNATIONAL MARKETS COULD AFFECT OUR OVERALL SALES.
We generate a significant portion of our revenues from international
sales. Currently, we have direct sales organizations in the United Kingdom,
Denmark and Singapore and have distribution agreements covering other European
countries, the Pacific Rim, and South America. Our performance could be
adversely affected by changes in the world economies. As a result of doing
business abroad, a significant percentage of our revenues and expenses are
denominated in foreign currencies that fluctuate in value. Although we may
enter into foreign exchange forward contracts and foreign exchange option
contracts to offset a portion of the foreign exchange fluctuations,
unanticipated events may have a material impact on our results. Risks of doing
business abroad include:
. unanticipated changes in regulatory requirements, tariffs and other
barriers;
. potential changes in tax and other laws;
. greater difficulty in protecting intellectual property rights;
. difficulties in managing foreign operations; and
. general economic and political conditions.
These or other factors may have a material adverse effect on our
international sales, our ability to collect international receivables, or the
value of our assets denominated in foreign currencies, any of which would hurt
our operating results.
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MARKET FACTORS THAT AFFECT CERTAIN CLASSES OF CUSTOMERS MAY HURT OUR RESULTS.
Our revenues depend on our maintaining relationships with certain classes of
customers, including:
. government agencies in the United States, Canada, Germany and the United
Kingdom;
. corporate and commercial publishers, and law firms (for certain on-line
products);
. financial printers and issuers of securities; and
. financial services and health care organizations.
Factors that affect any of these customer groups may have a substantial
adverse effect on our earnings. For example, political pressures may cause
governmental customers to reduce spending on our products and services. A
reduction in the amount of orders received from any customer class could have a
material adverse effect on our earnings and may cause actual results to vary
materially from quarter to quarter.
WE MAY NOT BE ABLE TO OBTAIN OR ENFORCE PROTECTION FOR OUR INTELLECTUAL
PROPERTY, WHICH COULD LIMIT OUR ABILITY TO PREVENT COMPETITORS FROM USING OUR
TECHNOLOGY.
Our success depends in large part on protecting our proprietary intellectual
property rights. We rely primarily on a combination of copyright, trademark and
trade secret laws, license agreements, employee and third party non-disclosure
agreements and other methods to protect our software. We rely to a limited
extent on patent protection for our software products.
Various factors create risks in this area. For example, existing copyright
laws -- even in the United States -- afford only limited protection, and it may
be difficult to protect proprietary rights in certain international markets
where the
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laws do not offer the same intellectual property protection as U.S. law. Third
parties may claim we are infringing their rights. If these claims are made, they
may result in costly litigation or require us to license intellectual property
rights of others, which may not be possible on reasonable terms or at all. Any
such claims, with or without merit, can be time consuming and expensive to
defend, which can adversely affect our financial condition.
WE MAY HAVE DIFFICULTY INTEGRATING ACQUISITIONS INTO OUR BUSINESS, WHICH COULD
INCREASE OUR COSTS AND DELAY OUR ABILITY TO TAKE ADVANTAGE OF THE ACQUIRED
ASSETS.
Over the last several years, we have expanded our product range and
customer base through a number of selective acquisitions. We may acquire
additional businesses or assets in the future. The success of an acquisition is
dependent upon our ability to integrate the acquired business or assets into our
organization. For example, we may have difficulty integrating acquired
technology into our products, or we may not be able to retain or motivate key
employees of the acquired company. Our inability to integrate an acquired
business, or an increase in the cost of integration, could materially and
adversely affect our business, operating results and financial condition.
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In addition, acquisitions may result in the allocation of purchase price to
in-process research and development. The SEC has raised concerns about the
methodologies used and allocation of purchase price to in-process R&D and has
required some companies to adjust or restate prior periods to reduce allocations
to in-process R&D, thereby increasing intangible assets and future amortization
expense. While we believe that our in-process R&D allocations are appropriate,
if the SEC were to require us to change an allocation, this would result in a
higher amortization expense, which would adversely impact our operating results.
THIRD-PARTY DISTRIBUTORS MAY NOT SELL ENOUGH OF OUR PRODUCTS TO MAKE OUR
BUSINESS PROFITABLE.
A portion of our products are sold through indirect distribution channels,
such as value-added resellers. If we cannot develop and effectively manage
these relationships, it could have a material adverse effect on our
business.
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YEAR 2000 PROBLEMS COULD CAUSE INTERRUPTION OR FAILURE OF OUR INTERNAL COMPUTER
SYSTEMS AND THOSE OF OUR SUPPLIERS, WHICH MAY BE EXPENSIVE TO FIX.
To date, no material problems related to the Year 2000 issue have surfaced.
It is possible, however, that such problems exist but either have not yet
manifested themselves or have not yet been detected. We cannot, of course,
predict the nature or materiality of the impact on our operations or operating
results of Year 2000 disruption by parties over whom we have no control. These
Year 2000 problems may be expensive to fix and could have a material adverse
effect on our operating results.
OUR COMMON STOCK MAY HAVE A VOLATILE TRADING PRICE AND LOW TRADING VOLUME.
The market price of our common stock has been highly volatile and the
market for our common stock has experienced significant price and volume
fluctuations. In the last twelve months our common stock has traded as low as
$1.56 and as high as $18.50. This volatility has often been unrelated to our
operating performance, so our stock price could decline even if our e-business
solutions strategy is successful. These fluctuations have adversely affected and
may in the future adversely affect the market price of our common stock.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
It is especially important to keep the risk factors described on pages 4 to
8 in mind when you read "forward-looking statements" in our SEC filings or other
public announcements. These are statements that relate to the future and include
statements about our:
. projected financial performance;
. market opportunities;
. product development;
. commercialization of new products; and
. future operations.
These statements can be identified by the use of words such as "may,"
"will," "expect," "anticipate," "estimate," "continue" or other similar words.
These statements are necessarily based on management's knowledge at the time and
are subject to known and unknown risks and uncertainties and other factors that
could cause our actual results to differ materially from those contemplated by
the statements. Although we believe that the assumptions and expectations
reflected in these "forward-looking statements" are reasonable, you should not
view them as guarantees of future performance. There are important factors that
could cause future results to differ materially from those projected in the
forward-looking statements.
USE OF PROCEEDS
All net proceeds from the sale of the Dataware common stock offered in this
prospectus will go to the selling stockholders.
SELLING STOCKHOLDERS
We issued 200,000 shares of the common stock offered in this prospectus to
Sovereign Hill in exchange for our acquisition of certain assets and assumption
of certain liabilities of Sovereign Hill on December 31, 1998. In connection
with the acquisition, we agreed to register the shares of common stock for
resale under the Securities Act of 1933.
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Under the terms of a Software Licensing Agreement, in exchange for a
license for technology, we granted NEC USA an option to purchase 100,000 shares
of common stock which are being offered in this prospectus.
In exchange for consulting services, we issued The Parthenon Group an
option to purchase 58,330 shares of our common stock which are being offered in
this prospectus. Pursuant to the Consulting Agreement with The Parthenon
Group, we agreed to register the shares of common stock for resale under the
Securities Act of 1933.
The following table sets forth the number of shares of common stock owned
by the selling stockholders or which will be owned upon the exercise of an
option, all of which are being offered by this prospectus, and the percentage of
the outstanding shares of common stock beneficially owned by the selling
stockholders after this offering. As of May 1, 2000, there were approximately
10,530,034 shares of our common stock outstanding. The shares offered by this
prospectus may be offered from time to time, in whole or in part, by Sovereign
Hill, The Parthenon Group, NEC USA or their transferees.
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SHARES BENEFICIALLY
SHARES BENEFICIALLY SHARES OWNED OR ISSUABLE
OWNED BEFORE OFFERED AFTER
OFFERING(1) PURSUANT TO THIS OFFERING (1)(2)
--------------------------- THIS --------------------
NAME OF SELLING STOCKHOLDER NUMBER PERCENT PROSPECTUS NUMBER PERCENT
--------------------------- ------ ------- ------------ ------ -------
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Sovereign Hill Software, 200,000 2.0% 200,000 0 0
Inc.............................
100 Venture Way
Hadley, MA 01035
The Parthenon Group, Inc. ........ 58,330 * 58,330 0 0
NEC USA, Inc...................... 100,000 1.0% 100,000 0 0
</TABLE>
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* Indicates less than one percent.
(1) The selling stockholders listed in the table have sole voting and
investment power with respect to the shares beneficially owned by them.
(2) Assumes that all of the shares offered by the selling stockholders will be
sold in this offering.
PLAN OF DISTRIBUTION
We are registering the shares of our common stock offered in this
prospectus on behalf of the selling stockholders. As used in this prospectus,
"selling stockholders" includes pledgees, donees, distributees, transferees or
other successors-in-interest selling shares received from the selling
stockholders as a gift, partnership or liquidating distribution or other non-
sale related transfer after the date of this prospectus. We will pay all
expenses of registration of the shares offered, except for taxes or underwriting
fees, discounts, and selling commissions. The selling stockholders will pay any
brokerage commissions and similar selling expenses attributable to the sale of
the shares. We will not receive any of the proceeds from the sale of the shares
by the selling stockholders.
The selling stockholders, their pledgees, donees, distributees, transferees
or other successors-in-interest may sell the shares from time to time in one or
more types of transactions (which may include block transactions) on one or more
exchanges, in the over-the-counter market, in negotiated transactions, through
put or call options transactions relating to the shares, through short sales of
the shares, or a combination of these methods of sale. The selling stockholders
may sell their shares at market prices prevailing at the time of sale, or at
negotiated prices.
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The selling stockholders may use brokers or dealers to sell their shares.
As of the date of this prospectus, we have not been advised by any of the
selling stockholders that they have made any arrangements as to the distribution
of shares covered by this prospectus.
The selling stockholders may sell their shares directly to purchasers or to
or through broker-dealers, which may act as agents or principals. These broker-
dealers may receive compensation in the form of discounts, concessions or
commissions from the selling stockholder and/or the purchasers of shares for
whom broker-dealers may act as agents or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
The selling stockholders and any broker-dealers that act in connection with
the sale of the shares might be deemed to be "underwriters" as the term is
defined in Section 2(11) of the Securities Act of 1933. Consequently, any
commissions received by these broker-dealers and any profit on the resale of the
shares sold by them while acting as principals might be deemed to be
underwriting discounts or commissions under the Securities Act of 1933.
Because the selling stockholders may be deemed to be "underwriters" as
defined in Section 2(11) of the Securities Act of 1933, the selling stockholders
will be subject to the prospectus delivery requirements of the Securities Act of
1933.
The selling stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act of
1933, rather than pursuant to this registration, provided that they meet the
criteria and conform to the requirements of that Rule.
Upon being notified by a selling stockholder that it has entered into any
material arrangement with a broker-dealer for the sale of the shares through a
block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, we will file a supplement to this
prospectus, if required, pursuant to Rule 424(b) under the Securities Act of
1933, regarding the plan of distribution.
We have agreed to indemnify Sovereign Hill and The Parthenon Group, Inc. as
selling stockholders against certain liabilities, including liabilities arising
under the Securities Act of 1933, or to contribute to payments which they may be
required to make in respect hereof. The selling stockholders have agreed to
indemnify us against certain liabilities, including liabilities arising under
the Securities Act of 1933.
LEGAL MATTERS
Palmer & Dodge LLP, Boston, Massachusetts, our legal counsel, is giving an
opinion on the validity of the shares of common stock offered in this
prospectus. Matthew C. Dallett, a partner of Palmer & Dodge LLP, is the
Assistant Secretary of Dataware.
EXPERTS
The financial statements incorporated in this Registration Statement on
Form S-3 by reference to the Annual Report of Dataware Technologies, Inc. on
Form 10-K for the year ended December 31, 1999 have been so incorporated in
reliance on the report (which contains an explanatory paragraph relating to
Dataware's ability to continue as a going concern as described in Note A to the
consolidated financial statements) of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms at the following locations:
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Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, 7 World Trade Center Citicorp Center
N.W. Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, NY 10048 Suite 1400
Chicago, IL 60661-2511
</TABLE>
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. These SEC filings are also available to the public from
commercial document retrieval services and at the Internet world wide web site
maintained by the SEC at "http://www.sec.gov." Reports, proxy statements and
other information concerning Dataware may also be inspected at the offices of
The Nasdaq Stock Market, which is located at 1735 K Street, N.W., Washington,
D.C. 20006.
The SEC allows us to "incorporate by reference" information from other
documents that we file with them, which means that we can disclose important
information in this prospectus by referring to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede the information in this prospectus. We incorporate by reference the
documents listed below and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 before
the sale of all the shares covered by this prospectus:
. Annual Report on Form 10-K for the year ended December 31, 1999, as
filed with the SEC on March 13, 2000; and
The description of the common stock contained in our Registration
Statement on Form 8-A, declared effective by the SEC on July 19, 1993,
including any amendment or reports filed to update the description.
You may request a copy of these filings, at no cost, by writing or
telephoning Susan Weiner, Controller at our principal executive offices, which
are located at One Canal Park, Cambridge, Massachusetts 02141; Telephone: (617)
621-0820, or by sending an e-mail to: [email protected]. Additional information
about Dataware is available in our Internet website at http://www.dataware.com.
The information on our website is not incorporated by reference into this
prospectus.
We have not authorized anyone else to give any information or to represent
anything not contained in this prospectus. We have not authorized anyone else
to provide you with different information. This prospectus does not offer to
sell or buy any shares in any jurisdiction where that would be unlawful. You
should not assume that the information in this prospectus or any supplement is
accurate as of any date later than the date on this prospectus.
14
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate of the fees and expenses payable or
reimbursable by Dataware in connection with the offering and distribution of the
securities described this prospectus.
<TABLE>
<S> <C>
SEC registration fee.............................................$ 141
Legal fees and expenses.......................................... 6,000
Accounting fees and expenses..................................... 7,500
Transfer agent fees and expenses................................. 2,000
Miscellaneous.................................................... 1,000
-------
TOTAL............................................................ 16,641
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits the Registrant
to indemnify directors, officers, employees and agents of the Registrant against
actual and reasonable expenses (including attorneys' fees) incurred by them in
connection with any action, suit or proceeding brought against them by reason of
their status or service as a director, officer, employee or agent by or on
behalf of the Registrant, and against expenses (including attorneys' fees),
judgments, fines and settlements actually and reasonably incurred by him in
connection with any such action, suit or proceeding, if (i) he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Registrant, and (ii) in the case of a criminal proceeding, he
had no reasonable cause to believe his conduct was unlawful. Except as ordered
by a court, no indemnification shall be made in connection with any proceeding
brought by or in the right of the corporation where the person involved is
adjudged to be liable to the Registrant.
Article FIFTH, Section 6 of the Registrant's Restated Certificate of
Incorporation, as amended to date provides that the Registrant shall, to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time, indemnify each person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was, or has agreed to become
a director or officer of the Registrant, or is or was serving, or has agreed to
serve at the request of the Registrant as a director, officer or trustee of, or
in a similar capacity with, another corporation, partnership, joint venture,
trust or other enterprise. The indemnification provided for in Article FIFTH is
expressly not exclusive of any other rights to which those seeking
indemnification may be entitled under any law, agreement or vote of stockholders
or disinterested directors or otherwise, and shall inure to the benefit of the
heirs, executors and administrators of such persons. Article FIFTH further
permits the Board of Directors to authorize the grant of indemnification rights
to other employees and agents of the Registrant and such rights may be
equivalent to, or greater or less than, those set forth in Article FIFTH.
Article FIFTH, Section 7 of the Registrant's Restated Certificate of
Incorporation, as amended to date, provides that a director shall not be
personally liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, except to the extent that elimination or
II-1
<PAGE>
limitation of liability is not permitted under the Delaware General Corporation
Law as in effect when such liability is determined.
Article V, Section 1 of the By-Laws of the Registrant, as amended through
to date, permits the Registrant to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, fiduciary, or agent of
the Registrant against any liability asserted against and incurred by such
person in any such capacity or arising out of such person's position, whether or
not the Registrant would have the power to indemnify such person against such
liability under the provisions of the General Corporation Law of the State of
Delaware.
The Registrant maintains liability insurance for each director and officer
for certain losses arising from claims or charges made against them while acting
in their capacities as directors or officers of the Registrant.
ITEM 16. EXHIBITS
See Exhibit Index immediately following signature pages.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by section 10(a)(3) of the
Securities Act;
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<PAGE>
(ii) To reflect in the Prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
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 this Registration Statement;
provided, however, that no filing will be made pursuant to paragraph
(a)(1)(i) or (a)(1)(ii) if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment 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
this offering.
(b) 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 Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 provisions referred to in Item 15
hereof, 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Pre-Effective
Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, Commonwealth of Massachusetts, on this 5th
day of May, 2000.
DATAWARE TECHNOLOGIES, INC.
By: /s/ Michael Gonnerman
---------------------
Michael Gonnerman
Vice President, Chief Financial Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- ------------------- ------------------------------- -----------
<S> <C> <C>
*
- ------------------- President and Chief May 5, 2000
David Mahoney Executive Officer
(Principal Executive Officer)
*
- ------------------- Vice President, Chief Financial May 5, 2000
Michael Gonnerman Officer and Treasurer
(Principal Financial and
Principal Accounting Officer)
*
- ------------------- Vice Chairman and Senior May 5, 2000
Jeffrey O. Nyweide Executive Vice President
of Business Development
and Director
*
- ------------------- Director May 5, 2000
Stephen H. Beach
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C> <C>
*
- ------------------- Director May 5, 2000
William R. Lonergan
* By Power of Attorney
/s/ Michael Gonnerman Attorney-in-Fact
- ---------------------
Michael Gonnerman
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
2.1 Asset Purchase Agreement dated December 31, 1998, among Dataware, Sovereign Hill Software,
Inc. and certain Stockholders of Sovereign Hill. Filed as Exhibit 2.1 to Dataware's Current
Report on Form 8-K (File No. 000-21860) on April 17, 1997, and incorporated herein by
reference.
4.1.1 Restated Certificate of Incorporation, as amended through April 14, 1997. Filed as Exhibit
3.1 to Dataware's Current Report on Form 8-K (File No. 000-21860) on April 17, 1997, and
incorporated herein by reference.
4.1.2 Certificate of Amendment to Restated Certificate of Incorporation, as amended through April
13, 2000. Filed herewith.
4.2 By-laws of Dataware, as amended through February 9, 1999. Filed as Exhibit 3.2 to
Dataware's Form 10-K (File No. 000-21860) for the year ended December 31, 1998, and
incorporated herein by reference.
4.3 Rights Agreement dated July 8, 1996, by and between American Stock Transfer & Trust Company
as Rights Agent and the Registrant (the "Rights Agreement"). Filed as Exhibit 4 to
Dataware's Current Report on Form 8-K (File No. 000-21860) on July 18, 1996, and
incorporated herein by reference.
4.4 First Amendment to the Rights Agreement, dated April 14, 1997. Filed as Exhibit 4.1 to
Dataware's Current Report on Form 8-K (File No. 000-21860) on April 17, 1997, and
incorporated herein by reference.
5 Opinion of Palmer & Dodge LLP as to the legality of the shares being registered, filed
herewith.
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants, filed herewith.
23.2 Consent of Palmer & Dodge LLP. Included in the opinion filed as Exhibit 5 hereto.
24 Power of Attorney.
- ----------------
* Previously filed.
</TABLE>
<PAGE>
Exhibit 4.1.2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
DATAWARE TECHNOLOGIES, INC.
Pursuant to Section 242
of the General Corporation Law of
the State of Delaware
Dataware Technologies, Inc. (the "Corporation"), a corporation existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify that (a) at a meeting of Directors duly held on February 8,
2000, the Board of Directors duly adopted resolutions pursuant to Section 242 of
the General Corporation Law of the State of Delaware, setting forth an amendment
to the Restated Certificate of Incorporation of the Corporation and declaring
said amendment to be advisable, and (b) the stockholders of the Corporation duly
approved said amendment at the Annual Meeting of Stockholders held on April 13,
2000 in accordance with the General Corporation Law of the State of Delaware.
The resolution setting forth the amendment is as follows:
RESOLVED: Article FOURTH, subsection (a) of the Corporation's Restated
Certificate of Incorporation is hereby amended to read as follows:
"FOURTH: The Corporation shall be authorized to issue Thirty-Eight Million
(38,000,000) shares of capital stock, which shall be divided into Thirty Million
(30,000,000) shares of Common Stock with a par value of one cent ($.01) per
share and Eight Million (8,000,000) shares of Preferred Stock with a par value
of one cent ($.01) per share."
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its duly authorized officer this 13th day of April,
2000.
DATAWARE TECHNOLOGIES, INC.
By: /s/ David Mahoney
------------------
David Mahoney
<PAGE>
EXHIBIT 5
---------
PALMER & DODGE LLP
Telephone: (617) 573-0100 One Beacon Street, Facsimile: (617) 227-4420
Boston, MA 02108-3190
May 5, 2000
Dataware Technologies, Inc.
One Canal Park
Cambridge, MA 02141
We are rendering this opinion in connection with the Registration Statement
on Form S-3 (the "Registration Statement") filed by Dataware Technologies, Inc.
(the "Company") with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, on or about the date hereof. This opinion supersedes
any opinions previously filed with respect to the shares covered by this
Registration Statement. The Registration Statement relates to 200,000 shares of
the Company's common stock, $.01 par value per share (the "Shares"), proposed to
be sold by a selling stockholder named in the Registration Statement and 158,330
shares that will be issued upon exercise of options (the "Options") granted to
two selling stockholders named in this Registration Statement (the "Option
Shares"). We understand that the Shares and the Option Shares are to be offered
and sold in the manner described in the Registration Statement.
We have acted as your counsel in connection with the preparation of the
Registration Statement. We are familiar with the proceedings of the Board of
Directors in connection with the authorization, issuance and sale of the Shares
and authorization of the Options. We have examined such other documents as we
consider necessary to render this opinion.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and are validly issued, fully paid and non-assessable, and upon
exercise of the Options in accordance with their terms, the Option Shares will
be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as a part of the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus filed as part thereof.
Very truly yours,
/s/ PALMER & DODGE LLP
Palmer & Dodge LLP
II-7
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 8, 2000 relating to the
financial statements and financial statement schedule, which appears on page
20, in Dataware Technologies, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1999. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
May 5, 2000
