As filed with the Securities and Exchange Commission on November 27, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
WONDERWARE CORPORATION
(Exact name of Registrant as specified in its charter)
--------------------
Delaware 33-0304677
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
100 Technology Drive
Irvine, California 92618
(714) 727-3200
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
--------------------
Sam M. Auriemma
Vice President, Finance and Chief Financial Officer
WONDERWARE CORPORATION
100 Technology Drive
Irvine, California 92618
(714) 727-3200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------
Copies to:
D. Bradley Peck, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
--------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable 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 statement 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 statement 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,
please check the following box.| |
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
offering price aggregate
Title of each class of Amount to per share (1) offering price (1) Amount of
securities to be registered be registered registration fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 82,777 $7.63 $631,589 $191
=========================================================================================================
<FN>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of computing
the amount of the registration fee based on the average of the high and low
prices of the Registrant's Common Stock as reported on the Nasdaq National
Market on November 21, 1996.
</FN>
</TABLE>
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 that 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 AMMENDMENT. 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
SOLICITATION 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.
================================================================================
SUBJECT TO COMPLETION, DATED NOVEMBER 27, 1996
PROSPECTUS
82,777 Shares
Wonderware Corporation
Common Stock
--------------------
This Prospectus relates to 82,777 shares (the "Shares") of Common Stock,
par value $.001 per share (the "Common Stock"), of Wonderware Corporation
("Wonderware" or the "Company"). The Shares may be offered by certain
stockholders of the Company (the "Selling Stockholders") from time to time in
transactions on the Nasdaq National Market, in privately negotiated transactions
or 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 may
effect such transactions by selling the 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 agent or to whom they sell as
principal or both (which compensation to a particular broker-dealer might be in
excess of customary commissions). See "Selling Stockholders" and "Plan of
Distribution."
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The Company has agreed to bear
certain expenses in connection with the registration and sale of the Shares
being offered by the Selling Stockholders. The Company has agreed to indemnify
the Selling Stockholders against certain liabilities, including certain
liabilities under the Securities Act of 1933, as amended. See "Plan of
Distribution."
The Common Stock of the Company is traded on the Nasdaq National Market
under the Symbol "WNDR." On November 21, 1996, the last sale price for the
Common Stock as reported by the Nasdaq National Market was $8.00 per share.
--------------------
The Common Stock offered hereby involves a high degree of risk.
See "Risk Factors" beginning on page 2.
--------------------
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.
The date of this Prospectus is , 1996
<PAGE>
THE COMPANY
Wonderware supplies Microsoft Windows-based software products for the
industrial automation market. The Company was formed as a partnership in April
1987 and was incorporated in California in June 1988 as Wonderware Software
Development Corporation. The Company reincorporated in Delaware in July 1993.
Unless the context otherwise requires, "Wonderware" and the "Company" refer to
Wonderware Corporation, a Delaware corporation, and the Delaware corporation's
predecessor. The Company's executive offices are located at 100 Technology
Drive, Irvine, California 92618, and its telephone number is (714) 727-3200.
This Prospectus includes tradenames and trademarks of companies other than
Wonderware.
RISK FACTORS
In addition to the other information set forth in this Prospectus, the
following risk factors should be considered carefully in evaluating the Company
and its business before purchasing any shares of Common Stock offered hereby.
Fluctuations in Quarterly Operating Results
The Company has recently experienced significant fluctuations in quarterly
operating results and expects to continue to experience significant fluctuations
in future quarterly operating results. Such fluctuations have been caused, and
in the future may be caused, by a number of factors, including, among others:
competition and pricing in the software industry; delays in introduction of
products or product enhancements by the Company, its competitors or other
providers of hardware, software and components for the industrial automation
market; customer order deferrals in anticipation of new products; market
acceptance of new products; reduction in demand for existing products and
shortening of product life cycles as a result of new product introductions;
changes in operating expenses; the size and timing of individual orders;
software "bugs" or other product quality problems; seasonality of revenues;
changes in Company strategy; personnel changes; foreign currency exchange rates;
mix of products sold; and general economic conditions. As a result, the Company
believes that period-to-period comparisons of its results of operations are not
necessarily meaningful and should not be relied upon as indications of future
performance.
Because the Company ships software products within a short period after
receipt of an order, the Company typically does not have a material backlog of
unfilled orders, and revenues in any quarter are substantially dependent on
orders booked in that quarter. The Company's expense levels are based in part on
its expectations as to future revenues and the Company may be unable to adjust
spending in a timely manner to compensate for any revenue shortfall.
2.
<PAGE>
Accordingly, operating results would be adversely affected by a reduction in
revenues in that quarter since the majority of the Company's expenses are fixed.
Any significant weakening in demand would have an almost immediate adverse
impact on the Company's operating results and on the Company's ability to
maintain profitability. In addition, fluctuations in operating results have
resulted in, and may in the future result in, volatility in the price of the
Company's Common Stock.
Product Concentration
The Company's current products are limited in number, and the Company's
product revenues are derived primarily from the family of Wonderware InTouch
products for industrial automation applications. Revenues from the Wonderware
InTouch family of products represent over 80% of the Company's total revenues.
The Company expects that revenues from these products will continue to account
for a substantial portion of the Company's revenues in future periods, but that
the share of revenues derived from other products will increase as new products
are introduced. The life cycles of the Company's products are difficult to
estimate due in large measure to the recent emergence of the Company's market,
the future effect of product enhancements and future competition. Declines in
demand for these products, whether as a result of competition, technological
change or otherwise, or price reductions would have a material adverse effect on
the Company's operating results.
Competition
The market for the Company's products is increasingly competitive. The
Company expects competition to continue to increase, which could result in a
decline in the Company's market share as other companies introduce additional
and more competitive Microsoft Windows-based products in this emerging market
segment. Many of the Company's present or anticipated competitors have
substantially greater financial, technical, marketing and sales resources than
the Company. There can be no assurance that the Company will be able to compete
successfully in the future.
Dependence on Microsoft Windows
The Company's software development tools are designed for use with personal
computers running in the Microsoft Windows operating environment, and future
sales of the Company's products are dependent upon continued use of Windows and
Windows NT. In addition, changes to Windows (such as the release of Windows 95)
or Windows NT require the Company to continually upgrade its products. Any
inability to produce upgrades or any material delay in doing so would adversely
affect the Company's operating results. The successful introduction of new
operating systems or improvements of existing operating systems that compete
with Windows or Windows NT also could adversely affect sales of the Company's
products and have a material adverse effect on the
Company's operating results.
3.
<PAGE>
Rapid Technological Change
The market for the Company's products is characterized by rapid
technological advances, evolving industry standards, changes in end-user
requirements and frequent new product introductions and enhancements. While the
Company to date has been committed to the Microsoft Windows and Windows NT
platforms, the introduction of products embodying new technologies and the
emergence of new industry standards could render the Company's existing products
and products currently under development obsolete and unmarketable. The
Company's future success will depend upon its ability to enhance its current
products and to develop and introduce new products that keep pace with
technological developments, respond to evolving end-user requirements and
achieve market acceptance. Any failure by the Company to anticipate or respond
adequately to technological developments or end-user requirements, or any
significant delays in product development or introduction, could result in a
loss of competitiveness or revenues. In the past, the Company has experienced
delays in the introduction of new products and product enhancements. There can
be no assurance that the Company will be successful in developing and marketing
new products or product enhancements on a timely basis or that the Company will
not experience significant delays in the future, which could have a material
adverse effect on the Company's results of operations. In addition, there can be
no assurance that new products or product enhancements developed by the Company
will achieve market acceptance.
Integration of Acquisitions
In July 1995, the Company entered into an Agreement and Plan of
Reorganization with EnaTec Software Systems, Inc., a developer of Windows-based
manufacturing execution systems software ("EnaTec"), pursuant to which a newly
formed, wholly owned subsidiary of the Company was merged with and into EnaTec.
In August 1995, the Company entered into an Agreement and Plan of Reorganization
with Soft Systems Engineering, Inc., a developer of batch manufacturing process
software ("SSE"), pursuant to which SSE was merged with another newly formed,
wholly owned subsidiary of the Company. The integration of EnaTec and SSE into
the Company, the completion of the development of their respective product
offerings and the integration of such product offerings into the Company's
product offerings has diverted a significant portion of the Company's management
and financial resources and is expected to continue to do so for an indefinite
period of time. There can be no assurance that further difficulties will not
arise in integrating the operations of EnaTec and SSE, completing the
development of their products or integrating those products with the Company's
products. The failure to accomplish any of the goals of either acquisition or
the failure to successfully integrate the operations of either EnaTec or SSE
would have a material adverse effect on the Company's operating results and
financial condition. There can be no assurance that the Company will realize
increased revenues or profits as a result of the acquisition of EnaTec and SSE.
In particular, the new product offerings resulting from such acquisitions
address new markets with which the Company's existing distributors are
relatively unfamiliar, and there can be no assurance that such distributors will
be able to successfully market and sell these new products.
4.
<PAGE>
In September 1996, the Company signed a letter of intent to acquire all of
the outstanding shares of capital stock of its software distributor in Germany,
ICT-Wonderware GmbH ("ICT-Wonderware"). It is the intention of the Company and
ICT-Wonderware to consummate the acquisition no later than December 31, 1996.
There can be no assurance that the integration of ICT-Wonderware into the
Company will not divert a significant portion of the Company's management and
financial resources or that difficulties will not arise in integrating the
operations of ICT-Wonderware into the Company. Moreover, there can be no
assurance that the acquisition of ICT-Wonderware will result in increased
revenues or profits. The failure to accomplish the goals of the acquisition of
ICT-Wonderware could have a material adverse effect on the Company's operating
results and financial condition.
Legal Proceedings
On July 9, 1996, the Company filed a complaint in the Superior Court of
California for the County of Orange against Constantin S. Delivanis and Vladimir
Preysman, formerly the Vice President and Vice President-Engineering,
respectively, of the Company's Cupertino Development Center. This complaint
alleges fraud, negligent misrepresentation, duress, securities fraud, breach of
the implied covenant of good faith and fair dealing, and breach of fiduciary
duty against Messrs. Delivanis and Preysman. The Cupertino Development Center
was established upon the Company's acquisition of EnaTec, in which Messrs.
Delivanis and Preysman owned a substantial majority of the stock (see Note 12,
Acquisitions, of Notes to Consolidated Financial Statements included in the
Company's 1995 Annual Report to Stockholders for a description of the
acquisition of EnaTec). The Company is seeking compensatory and punitive damages
with respect to its claims, as well as the costs incurred in pursuing these
claims. Mr. Delivanis and Mr. Preysman's employment with the Company was
terminated. Both Mr. Delivanis and Mr. Preysman answered the complaint and
asserted cross-claims against the Company, alleging breach of contract,
termination in violation of public policy, defamation (slander per se),
intentional infliction of emotional distress, negligent infliction of emotional
distress, negligence, common law fraud and deceit, and civil conspiracy. Both
requested relief in the form of compensatory and punitive damages as well as the
costs incurred in pursuing their cross-claims. In addition, on September 27,
1996, Mr. Delivanis, Mr. Preysman, and the Delivanis Family Trust filed a
complaint for declaratory judgment and specific performance, seeking
registration of certain Wonderware stock. The company has demurred to that
complaint. It is too early to determine the impact, if any, of these proceedings
on the Company or the results of the Company's operations.
5.
<PAGE>
On October 16, 1996, the Company filed an action in the United States
District Court for the Central District of California against Cyberlogic
Technologies, Inc. ("Cyberlogic") and Intellution, Inc. ("Intellution"). The
complaint alleges that Cyberlogic and Intellution have infringed the copyright
in a particular software program which Cyberlogic originally developed under
contract for the Company. The complaint seeks preliminary and permanent
injunctive relief as well as actual and punitive damages and attorneys' fees.
There can be no assurance that Cyberlogic and Intellution will not assert
counterclaims against the Company and no assurance can be given concerning the
ultimate outcome of this matter. In any event, even if the Company is successful
in such proceedings, the legal and other costs associated with such proceedings
could be substantial.
Foxboro Litigation
In 1995, The Foxboro Company ("Foxboro") initiated litigation against SSE
asserting claims with respect to Foxboro's ownership interest in certain
software developed by SSE, which interest is subject to a repurchase right in
favor of SSE. There can be no assurance that the results of such litigation will
not have a material adverse effect on the Company. There also can be no
assurance that SSE will be able to repurchase Foxboro's ownership interest or,
if such repurchase is accomplished, that it would be on terms favorable to the
Company. Although it is too early to determine the ultimate outcome, there can
be no assurance that, if such repurchase is not accomplished, Foxboro's
ownership interest or the exercise of Foxboro's rights under agreements with
SSE, would not have a material adverse effect on the Company or the results of
the Company's operations.
For further information concerning the Foxboro litigation proceedings, see
the Company's Annual Report on Form 10-K for the year ended December 31, 1995
and the Company's subsequent reports on Form 10-Q.
Management of Growth
The Company has recently experienced rapid growth in the number of
employees, the scope of its operating and financial systems and the geographic
area of its operations. This growth has resulted in an increase in the level of
responsibility for both existing and new management personnel. To manage its
growth effectively, the Company will be required to continue to implement and
improve its operating and financial systems and to expand, train and manage its
employee base. There can be no assurance that the management skills and systems
currently in place will be adequate if the Company continues to grow. The
Company may make additional acquisitions in the future. The Company's management
has only limited experience with acquisitions, which involve numerous risks,
including difficulties in the assimilation of the operations and products of the
acquired companies, the diversion of management's attention from other business
concerns and the potential loss of key employees of the acquired companies.
6.
<PAGE>
Key Employees
The Company's continued success will depend upon its ability to retain a
number of key employees, including Roy H. Slavin, the Company's Chairman of the
Board, President and Chief Executive Officer, most of whom are not subject to
employment agreements or agreements that restrict their ability to compete with
the Company following the termination of their employment. In addition, the
Company believes that its future success will depend in large part on its
ability to attract and retain highly skilled technical, managerial and marketing
personnel. Competition for such personnel is intense, and there can be no
assurance that the Company will be successful in attracting and retaining such
personnel. The loss of certain key employees or the Company's inability to
attract and retain other qualified employees could have a material adverse
effect on the Company's business.
Reliance upon Distribution Channel
The Company has relied and expects to continue to rely primarily on
independent distributors for the marketing and distribution of its products.
These distributors may also represent other lines of products, some of which may
be complementary to or competitive with the Company's products. The Company's
distributors are not within the control of the Company and are not obligated to
purchase products from the Company. While the Company encourages its
distributors to focus primarily on the promotion and sale of the Company's
products, there can be no assurance that these distributors will not give higher
priority to the sale of other products, including products developed by existing
or potential competitors. A reduction in sales efforts or discontinuance of
sales of the Company's products by its distributors could lead to reduced sales
and could adversely affect the Company's operating results. In addition, the
Company has recently expanded its product offering to include software products,
such as its Wonderware InTrack product, that address new markets with which the
Company's existing distributors are relatively unfamiliar. There can be no
assurance as to the continued viability or financial stability of the Company's
distributors, the ability of the Company's existing distributors to successfully
market and sell the Company's new product offerings, the Company's ability to
retain its existing distributors or the Company's ability to add new
distributors in the future. In addition, as a result of new product
introductions or pricing actions by the Company or others, the Company's
distributors or end-users may alter the expected timing of their product
purchases, thereby exacerbating the possible variability of the Company's
quarterly operating results.
7.
<PAGE>
Dependence on General Economic Conditions
Based in part on the growth in the overall market for and the Company's
penetration of the industrial automation software market, as well as the
geographic and industry diversity of the Company's customers, the Company
believes that general economic conditions have not had a material adverse effect
on the Company's results of operation to date. There can be no assurance,
however, that economic conditions will not have a material adverse effect on the
Company in the future.
International Sales
The Company derived approximately $17.9 million (39%) and $16.3 million
(42%) of its total revenues from international sales during the first nine
months of 1995 and 1996, respectively. The Company expects that international
sales will continue to represent a significant percentage of its total revenues.
The Company's international operations are subject to various risks, including
exposure to currency fluctuations, regulatory requirements, political and
economic instability and trade restrictions. Although the Company's sales are
typically made in U.S. dollars, a weakening in the value of foreign currencies
relative to the U.S. dollar could have an adverse impact on the effective price
of the Company's products in its international markets. Delays in foreign
language translations and other measures to "localize" the Company's product
offerings for international markets could also adversely impact the timing and
amount of international sales. In addition, the Company's business may be
adversely affected by lower sales levels in Europe, which typically occur during
the summer months.
Dependence on Proprietary Rights
The Company regards its software as proprietary and attempts to protect it
with copyrights, trademarks, trade secret laws and restrictions on disclosure,
copying and transferring title. However, the Company has no patents, and
existing copyright laws afford only limited practical protection for the
Company's software. In addition, the laws of some foreign countries do not
protect the Company's proprietary rights to the same extent as do the laws of
the United States. The Company licenses its products primarily under "shrink
wrap" license agreements that are not signed by licensees and therefore may be
unenforceable under the laws of certain foreign jurisdictions. In addition, in
some instances the Company licenses its products under agreements that give
licensees limited access to the source code of the Company's products.
Accordingly, despite precautions taken by the Company, it may be possible for
unauthorized third parties to copy certain portions of the Company's products or
to obtain and use information that the Company regards as proprietary. As the
number of software products in the industry increases and the functionality of
these products further overlaps, the Company believes that such software will
become increasingly the subject of claims that such software infringes the
rights of others.
8.
<PAGE>
Although the Company does not believe that its products infringe on the
rights of third parties, from time to time third parties have asserted
infringement claims against the Company and there can be no assurance that third
parties will not assert infringement claims against the Company in the future.
Moreover, there can be no assurance that any such assertions will not result in
costly litigation or require the Company to obtain a license to intellectual
property rights of such parties. In addition, there can be no assurance that
such licenses will be available on reasonable terms, or at all. In July 1995,
the Company and Touch Technologies, Inc. entered into a Settlement Agreement
pursuant to which the Company may continue to use the marks InTouch and
Wonderware InTouch in connection with its business and products until December
31, 1998.
Potential Volatility of Stock Price
The Company believes factors such as quarterly fluctuations in results of
operations, management changes, delays in the introduction of new products or
product enhancements, and announcements of new products by the Company or by its
competitors has caused and may continue to cause the market price of the Common
Stock to fluctuate substantially. In addition, in recent years the stock market
in general, and the shares of technology companies in particular, have
experienced extreme price fluctuations. These broad market and industry
fluctuations may adversely affect the market price of the Company's Common
Stock.
Anti-Takeover Effects of Certain Charter Provisions, Unissued Preferred
Stock and Delaware Law
The Company's Board of Directors has the authority, without action by the
Stockholders, to fix the rights and preferences of and to issue shares of
Preferred Stock. In February 1996, the Board of Directors adopted a Preferred
Share Purchase Rights Plan (commonly known as a "poison pill"), which may have
the effect of delaying or preventing a change in control of the Company. The
Company is also subject to the anti-takeover provisions of Section 203 of the
Delaware General Corporation Law. Furthermore, certain provisions of the
Company's Certificate of Incorporation and Bylaws may discourage certain types
of transactions involving an actual or potential change in control of the
Company, including transactions in which the stockholders might otherwise
receive a premium for their shares over then current prices, and may limit the
ability of the stockholders to approve transactions that they deem to be in
their best interest.
9.
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of Common Stock of each Selling Stockholder and as adjusted to give
effect to the sale of the Shares offered hereby. The Shares are being registered
to permit public secondary trading of the Shares, and the Selling Stockholders
may offer the Shares for resale from time to time. See "Plan of Distribution."
<TABLE>
<CAPTION>
Number of Beneficial
Number of Shares Shares Ownership
Beneficially Owned Being Offered After
Selling Stockholder Prior to Offering Offering(1)
<S> <C> <C> <C>
William F. Anderson, Jr.(2) 50,681 22,300 28,381
William F. Anderson, Jr. and 226 226 --
Janet L. Anderson (3)
Jeffrey L. Kissling 50,185 21,804 28,381
Laurence G. LeBlanc 14,519 6,352 8,167
Otto W. Voit III 14,519 6,352 8,167
Susan V. Maull(4) 3,675 2,848 827
Susan V. Maull and Raymond F. Chevaux, 453 453 --
Jr.(5)
David A. Westrom 11,615 5,081 6,534
Paul F. Myers(6) 588 41 547
Donald R. Tunnell(7) 1,359 63 1,296
Eric P. Grove(8) 1,179 13 1,166
Stanley R. Brubaker(9) 2,720 13 2,707
Otto W. Voit, Jr. and Lynne J. Vanino 907 907 --
Thomas J. Krebs 1,361 1,361 --
Frederick Jopp and Charlene B. Jopp 3,629 3,629 --
Richard B. Felbeck 907 907 --
Wesley A. Logan and Patricia K. Logan 453 453 --
Mary S. Skold 907 907 --
Duane Ahlbrandt and Judith A. Ahlbrandt 907 907 --
Scott S. Weaver and Julie L. Weaver 907 907 --
Bruce Williams and Sharon L. Williams 453 453 --
Barry M. Barbush and Holly K. Barbush 453 453 --
Richard H. Mylin III and Cindy R. Mylin 453 453 --
Fred B. Atwood and Helen J. Atwood 1,814 1,814 --
Donald L. Hicks and Delores Hicks 907 907 --
Frank D. Sams(10) 1,814 1,814 --
Frank D. Sams and Jane E. Sams(11) 453 453 --
Eric A. Felbeck 453 453 --
Matthew J. Felbeck 453 453 --
- --------------------
<FN>
(1) Based on 13,809,032 shares of Common Stock outstanding as of October
15, 1996, no Selling Stockholder beneficially owns more than 1% of the
Company's outstanding Common Stock.
(2) Includes 226 shares held in trust in an individual retirement account for the benefit of William F.
Anderson, Jr. Does not include 226 shares held jointly with Janet L. Anderson.
(3) Does not include 226 shares held in trust in an individual retirement account for the benefit of William
F. Anderson, Jr. or 45,410 held solely by William F. Anderson, Jr.
(4) Does not include 453 shares held jointly with Raymond F. Chevaux, Jr.
(5) Does not include 3,675 shares held solely by Susan V. Maull.
(6) Includes 534 shares subject to stock options exercisable within 60 days of October 15, 1996.
(7) Includes 1,296 shares subject to stock options exercisable within 60 days of October 15, 1996.
(8) Includes 1,161 shares subject to stock options exercisable within 60 days of October 15, 1996.
(9) Includes 2,702 shares subject to stock options exercisable within 60 days of October 15, 1996.
(10) Does not include 453 shares held jointly with Jane E. Sams.
(11) Does not include 1,814 shares held solely by Frank D. Sams.
</FN>
</TABLE>
10.
<PAGE>
PLAN OF DISTRIBUTION
The Company has been advised that the Selling Stockholders may sell Shares
from time to time in transactions on the Nasdaq National Market, in
privately-negotiated transactions or a combination of such methods of sale, at
fixed prices which 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 may effect such transactions by selling the
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 agent or to whom they sell as principal, or both
(which compensation to a particular broker-dealer might be in excess of
customary commission).
The Selling Stockholders and any broker-dealers who act in connection with
the sale of Shares hereunder may be deemed to be "underwriters" as that term is
defined in the Securities Act of 1933, as amended (the "Securities Act"), and
any commissions received by them and profit on any resale of the Shares as
principal might be deemed to be underwriting discounts and commissions under the
Securities Act.
LEGAL MATTERS
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company by Cooley Godward LLP, San Diego, California
("Cooley Godward").
EXPERTS
The consolidated financial statements as of December 31, 1995 and 1994 and
for each of the three years in the period ended December 31, 1995 incorporated
by reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report which is incorporated herein by reference
and have so been incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at
the Commission's following Regional Offices: Chicago Regional Office, Suite
1400, 500 West Madison Street, Chicago, Illinois 60661; and New York Regional
Office, Seven World Trade Center, Suite 1300, New York, New York 10048. Copies
of such material can also be obtained at prescribed rates from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549. The Commission also maintains a site on the World Wide
Web that contains reports, proxy and information statements and other
information regarding the Company. The address for such site is
http://www.sec.gov.
11.
<PAGE>
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act with respect to the Common Stock offered hereby.
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
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, which may be
inspected without charge at, and copies thereof may be obtained at prescribed
rates from, the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1995, the Company's Current Report on Form 8-K dated February 15, 1996, the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996,
the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996,
and the Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 1996, filed with the Commission are hereby incorporated by reference in this
Prospectus except as superseded or modified herein. All documents filed with the
Commission pursuant to Section 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 into this Prospectus and to be a
part hereof from the date of filing of such documents. Any statement contained
in any 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 other 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 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 or may be incorporated by reference herein (other than
exhibits to such documents which are not specifically incorporated by reference
into such documents). Such requests should be directed to the Chief Financial
Officer at the Company's principal executive offices at 100 Technology Drive,
Irvine, California 92618, telephone number (714) 727-3200.
12.
<PAGE>
TABLE OF CONTENTS
Page
THE COMPANY.................................................................. 2
RISK FACTORS................................................................. 2
SELLING STOCKHOLDERS........................................................ 10
PLAN OF DISTRIBUTION......................................................... 11
LEGAL MATTERS................................................................ 11
EXPERTS.......................................................................11
AVAILABLE INFORMATION........................................................ 11
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................. 12
--------------------
No person is authorized in connection with any offering made hereby to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus, and any information or representation not
contained or incorporated herein must not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an offer to sell,
or a solicitation of an offer to buy, by any person in any jurisdiction in which
it is unlawful for such person to make such offer or solicitation. Neither the
delivery of this Prospectus at any time nor any sale made hereunder shall, under
any circumstances, imply that the information herein is correct as of any date
subsequent to the date hereof.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses 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.
SEC registration fee..................................... $ 191
Legal fees and expenses.................................. 2,000
Accounting fees and expenses............................. 500
------------
Total......................................... $ 2,691
============
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 Registrant's Bylaws also provide that the
Registrant will indemnify its directors and executive officers and may indemnify
its other officers, employees and other agents to the fullest extent not
prohibited by Delaware law.
The Registrant's Amended and Restated Certificate of Incorporation provides
that the liability of its directors for monetary damages shall be eliminated to
the fullest extent permissible under Delaware law. Pursuant to Delaware law,
this includes 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 as 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 also 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
<PAGE>
(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.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
Item 16. Exhibits.
Exhibit
Number Description of Document
3.1 Registrant's Amended and Restated Certificate of Incorporation.(1)
3.2 Certificate of Designation of Series A Junior Participating Preferred
Stock filed February 15, 1996.
3.3 Registrant's Amended Bylaws.(1)
4.1 Specimen stock certificate.(2)
5.1 Opinion of Cooley Godward LLP. Reference is made to page II-7.
23.1 Consent of Deloitte & Touche LLP. Reference is made to page II-8.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-5.
- ------------
(1) Filed as an exhibit to Registrant's Registration Statement on Form S-1
(No. 33-72380) or amendments thereto and incorporated herein by
reference.
(2) Filed as an exhibit to Registrant's Registration Statement on Form S-1
(No. 33-63906) or amendments thereto and incorporated herein by
reference.
Item 17. Undertakings.
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 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
Act and is, therefore, unenforceable. In the
II-2
<PAGE>
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue. The undersigned
Registrant hereby undertakes:
(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 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;
(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 clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
these clauses is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 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 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; and
(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.
II-3
<PAGE>
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 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.
The undersigned Registrant undertakes that:
(1) for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of the registration statement in reliance upon
Rule 430A and contained in the 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 the registration statement
as of the time it was declared effective; and
(2) for the purpose of determining any liability under the
Securities Act of 1933, 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, 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 21st day of
November, 1996.
WONDERWARE CORPORATION
By: /S/ Sam M. Auriemma
-----------------------------
Sam M. Auriemma
Vice President, Finance and
Chief Financial Officer
(Principal financial and
accounting officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints ROY H. SLAVIN and SAM M. AURIEMMA, and
each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for the undersigned and in his name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to the Registration Statement and to file
the same, with all exhibits thereto, and all 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, each acting alone, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
II-5
<PAGE>
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.
Signature Title Date
/s/ Roy H. Slavin Chairman of the Board President and November 21, 1996
- ------------------------ Chief Executive Officer (Principal
Roy H. Slavin executive officer)
/s/ Sam M. Auriemma Vice President, Finance and Chief November 21, 1996
- ------------------------ Financial Officer (Principal
Sam M. Auriemma financial and accounting officer)
/s/ F. Rigdon Currie Director November 21, 1996
- ------------------------
F. Rigdon Currie
Director November 21, 1996
/s/ Harvard H. Hill, Jr.
- ------------------------
Harvard H. Hill, Jr.
Director November 21, 1996
/s/ Jay L. Kear
- ------------------------
Jay L. Kear
Director November 21, 1996
/s/ John E. Rehfeld
- ------------------------
John E. Rehfeld
II-6
<PAGE>
November 27, 1996
Wonderware Corporation
100 Technology Drive
Irvine, California 92718
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Wonderware Corporation (the "Company") of a Registration
Statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission covering the offer and sale of up to eighty-two thousand
seven hundred seventy-seven (82,777) shares of the Company's Common Stock, par
value $.001, by certain stockholders, as described in the Registration Statement
(the "Shares").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation, as amended, your Bylaws,
as amended 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 are validly issued, fully paid, and nonassessable.
We consent to the reference to our firm under the caption "Legal Matters" in the
Prospectus included in the Registration Statement and to the filing of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ D. Bradley Peck
---------------------
D. Bradley Peck
II-7
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Wonderware Corporation on Form S-3 of our report dated January 17, 1996,
appearing in the Annual Report on Form 10-K of Wonderware Corporation for the
year ended December 31, 1995 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Costa Mesa, California
November 26, 1996
II-8
<PAGE>
Exhibit Index
Exhibit
Number Description of Document Page No.
3.1 Registrant's Amended and Restated Certificate of *
Incorporation.(1)
3.2 Certificate of Designation of Series A Junior Participating
Preferred Stock filed February 15, 1996.
3.3 Registrant's Amended Bylaws.(1) *
4.1 Specimen stock certificate.(2) *
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum. Reference
is made to page II-7.
23.1 Consent of Deloitte & Touche LLP. Reference is made to page II-8.
23.2 Consent of Cooley Godward LLP. Reference is made to
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-5.
- -------
(1) Filed as an exhibit to Registrant's Registration Statement on Form S-1
(No.33-72380) or amendments thereto and incorporated herein by reference.
(2) Filed as an exhibit to Registrant's Registration Statement on Form S-1
(No.33-63906) or amendments thereto and incorporated herein by reference.
II-9
