As filed with the Securities and Exchange Commission on December 26, 1996
Registration No. 333-16973
================================================================================
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
-------------------
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
--------------------
<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 DECEMBER 26, 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 December 17, 1996, the last sale price for the
Common Stock as reported by the Nasdaq National Market was $9.0625 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 December , 1996
<PAGE>
THE COMPANY
This Prospectus (and the information incorporated herein by reference)
contains forward-looking statements that involve risks and uncertainties. The
Company's actual results could differ materially from those discussed herein or
incorporated herein by reference. Factors that could cause or contribute to such
differences include, but are not limited to, those discussed in the section
entitled "Risk Factors," in the Company's most recent quarterly report on Form
10-Q and in the section entitled "Risk Factors" and elsewhere in the Company's
Annual Report on Form 10-K for the year ended December 31, 1995, as well as
those discussed elsewhere in this Prospectus and any other documents
incorporated herein by reference.
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;
<PAGE>
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.
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.
<PAGE>
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.
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
<PAGE>
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. In October 1996, the Company announced the reorganization of its
Manufacturing Systems Group, which is principally comprised of the former EnaTec
and SSE operations. As part of this reorganization, the Company will close its
development center in Cupertino, California and continue development activities
for Wonderware InTrack at the Company's development center in York,
Pennsylvania. As a result of this reorganization, the Company anticipates that
it will incur a restructuring charge of $1.0 to $2.0 million in the fourth
quarter of 1996. There can be no assurance that additional difficulties will not
arise in integrating the operations of EnaTec and SSE into the Company,
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 ell these new products.
In December 1996, the Company acquired all of the outstanding shares of
capital stock of its software distributor in Germany, ICT-Wonderware GmbH
("Wonderware GmbH"). As a result of the acquisition, the Company announced that
it would close its European regional sales office in Amsterdam, The Netherlands.
There can be no assurance that the integration of Wonderware GmbH 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 Wonderware GmbH into the Company. Moreover, there can be no
assurance that the acquisition of Wonderware GmbH will result in increased
revenues or profits. The failure to accomplish the goals of the acquisition of
Wonderware GmbH could have a material adverse effect on the Company's operating
results and financial condition.
<PAGE>
Legal Proceedings
In December 1996, the Company was notified that a complaint had been
filed in the U.S. District Court for the Eastern District of Pennsylvania by
Otto M. Voit, III (Civil Action No. 96-CV-7883). In the complaint, Mr. Voit
purports to be acting on behalf of all former holders of common stock, or
options to acquire common stock, of SSE, which was acquired by the Company in a
stock-for-stock merger exchange in August 1995. Mr. Voit alleges in the
complaint that the Company and certain of its officers who have also been named
as defendants in the action made or caused to be made materially false and
misleading statements and concealed material information in connection with the
acquisition of SSE by the Company. In particular, Mr. Voit alleges in the
complaint that the Company and the other defendants knew at the time of the
acquisition and failed to disclose that certain senior officers, including its
then Chief Executive Officer, were planning to leave the Company. Mr. Voit also
alleges that the Company knew at the time of the acquisition and failed to
disclose that it was planning to implement certain changes in its operations
that would substantially increase the Company's operating expenses. In the
complaint, Mr. Voit claims that these alleged misrepresentations and omissions
constitute violations of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), Rule 10b-5 thereunder and various state securities laws, common
law fraud, negligent misrepresentation, fraudulent inducement to enter into a
contract and inducement to enter into a contract by material misrepresentation
and requests relief in the form of compensatory and punitive damages as well as
the costs incurred in pursuing his claims. The Company believes the allegations
in the complaint are without merit and intends to vigorously defend itself and
the other defendants, each of whom has been previously indemnified by the
Company in connection with his employment as an officer of the Company, against
the claims stated in the complaint. It is too early to determine the impact, if
any, of these proceedings on the Company, its financial condition or its results
of operations, but there can be no assurance that the results of such litigation
will not have a material adverse effect on the Company, its financial condition
or its results of operations.
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.
The Company anticipates that Cyberlogic and Intellution will assert
counterclaims. In addition, Cyberlogic has filed a demand for arbitration of
various issues arising in or related to the pending litigation. Pursuant to such
demand, Cyberlogic is seeking declaratory relief and damages of an unspecified
amount. No assurance can be given concerning the ultimate outcome of this
matter. In any event,
<PAGE>
even if the Company is successful in such proceedings, the legal and other costs
associated with such proceedings could be substantial.
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. Both 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, 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.
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.
<PAGE>
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.
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
<PAGE>
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.
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
Historically, the Company derived a significant portion of its total
revenues from international sales. 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
<PAGE>
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.
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.
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
<PAGE>
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.
<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>
Beneficial
Number of Shares Number of Ownership
Beneficially Owned Shares After
Selling Stockholder Prior to Offering Being Offered 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 (4 14,519 6,352 8,167
Susan V. Maull(5) 3,675 2,848 827
Susan V. Maull and Raymond F. Chevaux, 453 453 --
Jr.(6)
David A. Westrom 11,615 5,081 6,534
Paul F. Myers(7) 588 41 547
Donald R. Tunnell(8) 1,359 63 1,296
Eric P. Grove(9) 1,179 13 1,166
Stanley R. Brubaker(10) 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 --
<PAGE>
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(11) 1,814 1,814 --
Frank D. Sams and Jane E. Sams(12) 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) Mr. Voit has filed a lawsuit against the Company, purportedly on behalf of a class of holders of Common
Stock who were formerly SSE stockholders or optionees. See "Risk Factors - Legal Proceedings." Other
Selling Stockholders may be members of such class.
(5) Does not include 453 shares held jointly with Raymond F. Chevaux, Jr.
(6) Does not include 3,675 shares held solely by Susan V. Maull.
(7) Includes 534 shares subject to stock options exercisable within 60 days of October 15, 1996.
(8) Includes 1,296 shares subject to stock options exercisable within 60 days of October 15, 1996.
(9) Includes 1,161 shares subject to stock options exercisable within 60 days of October 15, 1996.
(10) Includes 2,702 shares subject to stock options exercisable within 60 days of October 15, 1996.
(11) Does not include 453 shares held jointly with Jane E. Sams.
(12) Does not include 1,814 shares held solely by Frank D. Sams.
</FN>
</TABLE>
<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.
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
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
<PAGE>
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.
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 Reports on Form 8-K dated February 15,
1996, and December 2, 1996, the Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996, and 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.
<PAGE>
TABLE OF CONTENTS
Page
THE COMPANY.................................................................. 2
RISK FACTORS................................................................. 2
SELLING STOCKHOLDERS........................................................ 11
PLAN OF DISTRIBUTION......................................................... 13
LEGAL MATTERS................................................................ 13
EXPERTS.......................................................................13
AVAILABLE INFORMATION........................................................ 13
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................. 14
--------------------
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 15. Indemnification of Officers and Directors.
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its Directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act of 1933, as amended (the "Securities Act").
The Registrant's Certificate of Incorporation and By-laws include
provisions to (i) eliminate the personal liability of its directors for monetary
damages resulting from breaches of their fiduciary duty to the extent permitted
by Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware
Law") and (ii) require the Registrant to indemnify its directors and officers to
the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are,
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the corporation, and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as directors and officers.
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
acts or omissions that the director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's duty to the Registrant or its
stockholders when the director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to the Registrant or its stockholders, for improper
transactions between the director and the Registrant and for improper
distributions to stockholders and loans to directors and officers. The provision
also does not affect a director's responsibilities under any other law, such as
the federal securities law or state or federal environmental laws.
II-1
<PAGE>
The Registrant has entered into indemnity agreements with each of its
directors and executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a director or an
executive 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
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
The Registrant has an insurance policy covering the officers and
directors of the Registrant with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
Item 16. Exhibits.
Exhibit Number
Description of Document
23.1 Consent of Deloitte & Touche LLP. Reference
is made to page II-6.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities
Act 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
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-2
<PAGE>
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;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided however, that 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 Exchange Act that are incorporated by reference in the
registration statement; (2) that, for the purpose of determining any liability
under the Securities Act, each post-effective amendment 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.
The undersigned Registrant undertakes that: (1) for purposes of
determining any liability under the Securities Act, 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; (2) for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
II-3
<PAGE>
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) for the purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 26th day of December, 1996.
WONDERWARE CORPORATION
By:/s/ Sam M. Auriemma
-----------------------
Sam M. Auriemma
Vice President, Finance and
Chief Financial Officer
(Principal financial and accounting officer)
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 December 26, 1996
- ------------------------ Chief Executive Officer (Principal
Roy H. Slavin executive officer)
/s/ Sam M. Auriemma Vice President, Finance and Chief December 26, 1996
- ------------------------ Financial Officer (Principal
Sam M. Auriemma financial and accounting officer)
/s/ F. Rigdon Currie* Director December 26, 1996
- ------------------------
F. Rigdon Currie
December 26, 1996
/s/ Harvard H. Hill, Jr.* Director
- ------------------------
Harvard H. Hill, Jr.
December 26, 1996
/s/ Jay L. Kear* Director
- ------------------------
Jay L. Kear
December 26, 1996
/s/ John E. Rehfeld* Director
- ------------------------
John E. Rehfeld
*By:/s/Sam M. Auriemma
---------------------
Sam M. Auriemma
Attorney-in-Fact
II-5
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Pre-Effective Amendment No.
1 to Registration Statement No. 333-16973 of Wonderware Corporation 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
December 24, 1996
II-6
<PAGE>
Exhibit Index
Exhibit
Number Description of Document
23.1 Consent of Deloitte & Touche LLP. Reference
is made to page II-6.
