<PAGE> 1
As filed with the Securities and Exchange Commission on October 16, 1996
==============================================================================
Registration No: 333-13231
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
STARBASE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-05676363
(State or other jurisdiction (IRS employer
of incorporation or organization) identification number)
18872 MacArthur Boulevard
Irvine, CA 92612
(714) 442-4400
(Address, including zip code, and
telephone number, including
area code, of registrant's
principal executive
offices)
Robert W. Leimena
Chief Financial Officer
18872 MacArthur Boulevard
Irvine, CA 92612
(714) 442-4400
(Name, address, including zip code, telephone number,
including area code, of agent for service)
COPY TO:
Martin Eric Weisberg, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, NY 10036-8735
(212) 704-6050
- --------------------------------------------------------------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant
to dividend 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]
<PAGE> 2
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- -------------------------- ------------- ------------- ------------------- --------------
Proposed
maximum Proposed
Title of each class Amount aggregate maximum Amount of
of securities to be price per aggregate registration
to be registered registered unit (1) offering price (1) fee (4)
- -------------------------- ------------- ------------- ------------------- --------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 6,052,350 $ 4.065 $ 24,602,802.75 $ 7,455.39
Common Stock, par value
$.01 per share (2) 3,800,945 $ 4.065(3) $ 15,450,841.43 $ 4,682.07
- -------------------------- ------------- ------------- ------------------- --------------
Total 9,853,295 $ 40,053,644.18 $ 12,137.47
- -------------------------- ------------- ------------- ------------------- --------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee. The
Proposed Maximum Aggregate Offering Price was calculated pursuant to Rule
457(c) under the Securities Act of 1933, as amended, on the basis of the
average of the bid and ask prices reported in the Nasdaq SmallCap Market
system on September 25, 1996.
(2) Issuable upon exercise of warrants evidencing the right to purchase shares
of Common Stock, par value $.01 per share.
(3) In accordance with Rule 457(g), the registration fee for these shares is
calculated based upon a price which represents the highest of: (i) the
price at which the warrants may be exercised; (ii) the offering price of
securities of the same class included in the registration statement; or
(iii) the price of securities of the same class, as determined pursuant to
Rule 457(c).
(4) Of this amount $5,386.55 has been paid previously.
</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 WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
An Exhibit Index appears on page 25
<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
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.
OCTOBER 16, 1996
PROSPECTUS
9,853,295 SHARES
STARBASE CORPORATION
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
This Prospectus relates to the sale by certain persons (the "Selling
Stockholders") of 9,853,295 shares of common stock, $.01 par value per share
(the "Common Stock"), of StarBase Corporation, a Delaware corporation (the
"Company"). See "Selling Stockholders." The Company is not offering any shares
hereunder and will not receive any of the proceeds from the sale of shares by
the Selling Stockholders. Included in the number of shares offered hereby are
3,800,945 shares issuable under outstanding warrants held by the Selling
Stockholders (the "Warrants"). The Company will receive proceeds represented by
the exercise price of the Warrants if exercised by the holders thereof. It is
anticipated that the Selling Stockholders will offer such shares from time to
time in the over-the-counter market at the then prevailing market prices and
terms or in negotiated transactions and without the payment of any underwriting
discounts or commissions, except for usual and customary selling commissions
paid to brokers or dealers. See "Plan of Distribution." The Selling Stockholders
also may sell such shares from time to time pursuant to Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act").
The Common Stock is traded on the Nasdaq SmallCap Market under the symbol
"SBAS." On October 15, 1996, the last reported sale price of the Common Stock on
the Nasdaq SmallCap Market was $4.0625 per share.
THE SECURITIES OFFERED HEREBY ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK
AND SHOULD NOT BE PURCHASED BY ANYONE WHO CANNOT AFFORD THE LOSS OF HIS ENTIRE
INVESTMENT. SEE "RISK FACTORS" ON PAGES 5 - 11 OF THIS PROSPECTUS FOR A
DESCRIPTION OF RISK FACTORS.
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.
(cover page continued on next page)
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The Company has agreed to bear all of the expenses (other than selling
commissions and fees and expenses of counsel or other advisors to the Selling
Stockholders) in connection with the registration and sale of the Common Stock
being offered by the Selling Stockholders. See "Selling Stockholders" and "Plan
of Distribution." The Company has also agreed to indemnify the Selling
Stockholders against certain liabilities, including liabilities under the
Securities Act. The total expenses to be paid by the Company for this offering
are estimated at $34,137.
THE DATE OF THIS PROSPECTUS IS OCTOBER 16, 1996
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FORWARD-LOOKING STATEMENTS
Certain information incorporated by reference into this Prospectus under the
captions "Management's Discussion and Analysis of Financial Condition and
Results of Operations", "Business" and elsewhere include "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995, and is subject to the safe harbor created by that act. There are
several important factors that could cause actual results to differ materially
from those anticipated by the forward-looking statements contained in such
discussions. Additional information on the risk factors which could affect the
Company's financial results is included in this Prospectus and in the Company's
Annual Report for the fiscal year ended March 31, 1996 on Form 10-K, as amended,
and in other documents incorporated by reference herein.
AVAILABLE INFORMATION
The Company is subject to the informational reporting 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 of the Commission located at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at the New York Regional
Office of the Commission, Seven World Trade Center, Suite 1300, New York, New
York 10048, and at the Chicago Regional Office of the Commission, Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60621. 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., Washington, D.C. 20549.
Such materials may also be accessed electronically on the Internet at
http://www.sec.gov. The Common Stock is listed on the Nasdaq SmallCap Market
under the symbol "SBAS." Reports, proxy materials and other information
concerning the Company can also be inspected at the offices of the Nasdaq Stock
Market, Inc., 1735 K Street, NW, Washington, DC 20006-1500.
The Company has filed with the Commission a registration statement on Form S-3
(together with any and all amendments, the "Registration Statement") under the
Securities Act of 1933, as amended, with respect to the registration of the
Common Stock. This Prospectus does not contain all of the information set forth
in the Registration Statement and the exhibits thereto, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. In addition, certain documents filed by the Company with the
Commission have been incorporated herein by reference. See "Incorporation of
Certain Documents by Reference." For further information regarding the Company
and the Common Stock reference is made to the Registration Statement, including
the exhibits and schedules thereto and the documents incorporated herein by
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission, are incorporated herein by reference: (i) the Company's Quarterly
Report on Form 10-QSB for the quarter ended June 30, 1996; (ii) the Company's
Report on Form 10-K, as amended, for the fiscal year ended March 31, 1996, (iii)
Current Reports on Form 8-K filed on May 16, August 13, August 16, and September
9, 1996; (iv) the Company's Proxy Statement dated August 26, 1996 related to the
Annual Meeting of Stockholders held on September 25, 1996; and (v) the
description of Common Stock contained in "Description of Securities" in the
Company's Registration Statement on Form 10, as amended, dated April 27, 1995,
filed pursuant to Section 12(g) of the Exchange Act. In addition, each document
filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to termination
of the offering of Shares shall be deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date such document is filed
with the Commission.
Any statement contained herein, or any document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of the Registration Statement and this
Prospectus to the extent that a statement contained herein, or in any
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<PAGE> 6
subsequently filed document that also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute part of the Registration Statement or this Prospectus.
The Company will provide without charge to each person, including any beneficial
owner, to whom a copy of this Prospectus has been delivered, upon written or
oral request of any such person, a copy of any or all of the information that
has been incorporated by reference herein, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference into
the information that this Prospectus incorporates. Written or oral requests for
such copies should be directed to: Chief Financial Officer, StarBase
Corporation, 18872 MacArthur Boulevard, Irvine, CA 92612; (714) 442-4400.
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THE COMPANY
StarBase Corporation develops, markets and supports team-oriented product
development software that addresses the evolving needs of personal computer
users involved in projects requiring substantial collaboration. The Company was
founded in 1991 to address the inability of software development projects to
deliver software products on time and within budget, initially through the
improvement of individual programmer productivity tools. During 1993-1994,
however, the Company concluded that a next generation of individual productivity
tools would not be a lasting solution to the software productivity problem.
Based on focus group studies and market research, the Company decided to focus
entirely on the development and marketing of software designed to increase team
productivity, rather than individual programmer productivity. The Company was
reorganized in fiscal year 1996 to reflect this change in product and market
focus.
PRINCIPAL EXECUTIVE OFFICES
The principal executive offices of the Company are located at 18872 MacArthur
Boulevard, Irvine, CA 92612; its telephone number is (714) 442-4400 and its fax
number is (714) 442-4404.
RISK FACTORS
THIS OFFERING INVOLVES SUBSTANTIAL INVESTMENT RISK AND SHARES SHOULD BE
PURCHASED ONLY BY PERSONS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT. IN
EVALUATING AN INVESTMENT IN THE COMPANY AND ITS BUSINESS, PROSPECTIVE INVESTORS
SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AS WELL AS OTHER
INFORMATION SET FORTH ELSEWHERE IN THIS PROSPECTUS OR INCORPORATED HEREIN BY
REFERENCE.
SIGNIFICANT CASH REQUIREMENTS. The Company's cash requirements have been
and will continue to be significant. The Company's negative cash flow from
operations for the years ended March 31, 1994, 1995 and 1996 and the three
months ended June 30, 1996 was $3,708,000; $6,179,000; $4,949,000; and
$2,086,000, respectively. Continued operations will depend on its cash
flow, if any, from operations or its ability to raise additional funds
through equity, debt or other financing. There can be no assurance that the
Company will be able to obtain additional funding when needed, or that such
funding, if available, will be obtainable on terms favorable to the
Company. If the Company cannot obtain needed funds, it may be forced to cut
back or curtail its activities, in which case the business prospects of the
Company would be materially and adversely affected.
EARLY STAGE OF DEVELOPMENT; HISTORY OF LOSSES. The Company is a
development stage company and is subject to all of the risks inherent in a
development stage company. There can be no assurance that the Company's
product development efforts will result in a commercially viable business
or that the Company will be able to generate significant revenues or
operate profitably. Since its inception, the Company has had a history of
losses and as of June 30, 1996, the Company had a consolidated accumulated
deficit of approximately $19,433,000. From inception to date a substantial
portion of the Company's revenues was derived from the activities of its
Consulting Services division, which was discontinued in 1995, and from
sales of products that have been de-emphasized. The Company anticipates
incurring additional losses until it can successfully market and distribute
its existing integrated team environment ("ITE") products and successfully
develop, market, and distribute its planned future products. The
development of software products is difficult and time consuming, requiring
the coordinated participation of various technical and marketing personnel
and, at times, independent third-party suppliers. This development process
often encounters unanticipated delays and expenses, and unanticipated
changes in features and functionality extend projected time schedules and
increase estimated expenses. The likelihood of the success of the Company's
business must be considered in light of the problems, expenses, and
unforeseen delays frequently encountered in connection with the development
of new technologies. There can be no assurance that the Company will ever
achieve profitability.
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PRODUCT LINES UNDER DEVELOPMENT; DEVELOPING MARKET. At present, the
Company has commercially introduced four products, the marketing of which
to date has been limited. The Company's success will be dependent in large
part upon its ability to market its StarTeam products and to quickly
introduce and market additional products. While the Company is in various
stages of developing additional products, there can be no assurance that
such additional products will be completed or successfully marketed. User
preferences for software products are difficult to predict and,
historically, only a limited number of software products have achieved
sustained market acceptance. Demand for software products is subject to a
number of variables, including user preferences and the size of the
installed base of personal computers capable of running the products.
Further, the market for ITE software products is evolving. There can be no
assurance that the products introduced by the Company will achieve
acceptance, or that other software vendors will not develop and market
products which render the Company's products obsolete or less competitive.
Failure to obtain significant customer satisfaction or market share for the
Company's products would have a material adverse effect on the Company.
FLUCTUATIONS IN QUARTERLY RESULTS. The Company's results of operations
have historically varied substantially from quarter to quarter and the
Company expects they will continue to do so. In the past, the operating
results varied significantly as a result of a number of factors, including
the size and timing of customer orders or consulting agreements, product
mix, seasonality, the timing of the introduction and customer acceptance of
new products or product enhancements by the Company's competitors, new
products or version releases by the Company, changes in pricing policies by
the Company or its competitors, marketing and promotional expenditures,
research and development expenditures, and changes in general economic
conditions.
The Company's operating expenses are relatively fixed in the short term.
For example, the Company intends to make significant expenditures to
enhance its sales and marketing and research and development activities.
Once such expenditures are implemented, the Company may be unable to reduce
them quickly if revenue is less than expected. As a result, fluctuations in
revenues can cause significant variations in quarterly results of
operations. The Company does not operate with an order backlog and a
substantial portion of its revenue in any quarter is derived from orders
booked in that quarter. Accordingly, the Company's sales expectations are
based almost entirely on its internal estimates of future demand and not on
firm customer orders. Due to the foregoing factors, the Company believes
that quarter to quarter comparisons of its results of operations are not
necessarily meaningful and should not be relied upon as indications of
future performance. In addition, there can be no assurance that the Company
will be profitable on a quarter to quarter or any other basis in the
future.
INTENSE COMPETITION. The software industry is highly competitive, and user
demand for particular software may be adversely affected by the number of
competitive products from which to choose. The Company's competitors
include a broad range of companies that develop and market tools for
software application development. Many of the Company's current and
prospective competitors have significantly greater financial, technical,
manufacturing, sales, and marketing resources than the Company. There can
also be no assurance that the Company's competitors have not or will be
unable to develop products comparable or superior to those developed by the
Company or to adapt more quickly than the Company to new technologies,
evolving industry trends or customer requirements.
The Company believes that its ability to compete depends on factors both
within and outside its control, including the timing and success of new
products developed by it and its competitors, product performance and
price, ease of use, support of industry standards, and customer support and
service. There can be no assurance that the Company will be able to compete
successfully with respect to these factors. In particular, competitive
pressures from existing and new competitors who offer lower prices could
result in loss of sales, cause the Company to institute price reductions,
or result in reduced margins and loss of market share, all of which would
adversely affect the Company's results of operations.
DEPENDENCE ON AND INTENSE COMPETITION FOR KEY PERSONNEL. The Company's
success depends in large part on the continued service and performance of
certain key technical, marketing, sales, and management personnel. A number
of key management employees are relatively new to the Company, and the
Company's success will depend in part on successful assimilation of new
management personnel. None of the Company's management is covered by an
employment contract or key person life insurance. In addition, competition
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for such personnel in the software industry is intense and the process of
locating highly qualified technical and management personnel with the
combination of skills and attributes required to execute the Company's
strategy is often lengthy. There can be no assurance that the Company will
be successful in hiring or retaining qualified personnel. Loss of key
personnel or the inability to hire and retain qualified personnel could
have a material adverse effect upon the Company's business, results of
operations, and research and development efforts.
LACK OF MARKETING EFFORTS. Through the quarter ended June 30, 1996, the
Company's marketing programs have been curtailed due to a lack of working
capital. The Company is in the process of building its marketing and sales
organization. The current plan includes the addition of a number of
positions and recruitment efforts are currently underway. There can be no
assurances that these recruitment efforts will yield successful results.
STRATEGIC ALLIANCES. The development of alliances with selected software
companies that complement the Company's market and sales direction is an
element in the Company's marketing strategy. These alliances typically
involve joint marketing agreements and the inclusion of the Company's
products in the product line of the strategic partner. The Company is
currently pursuing a number of these alliances, but there can be no
assurance that these alliances will be implemented.
DEPENDENCE ON NEW PRODUCTS AND ADAPTATION TO TECHNOLOGICAL CHANGE. The
market for the Company's products is characterized by rapidly changing
technology, evolving industry standards, changes in customer needs, and
frequent new product introductions. The Company's future success will
depend on its ability to enhance its current products, to develop new
products on a timely and cost-effective basis to meet changing customer
needs and to respond to emerging industry standards and other technological
changes. Any failure by the Company to anticipate or respond adequately to
changes in technology and customer preferences, or any significant delays
in product development or introduction, could have a material adverse
effect on the Company's results of operations.
Software products as complex as those offered by the Company may contain
undetected errors when first introduced or as new versions are released.
There can be no assurance that, despite extensive testing by the Company
and by current and potential customers, errors will not be found in new
products after commencement of commercial shipments, resulting in loss of
or delay in market acceptance.
RELIANCE ON MICROSOFT. Microsoft Windows has gained widespread market
acceptance as the dominant computer operating system. Accordingly, the
Company has developed and is developing software products that function in
the Microsoft Windows, Windows 95 or Windows NT environments, and
anticipates that future products will also be designed for use in these
Microsoft environments. Because the Company expects that its
Microsoft-based applications will account for a significant portion of new
revenue for the foreseeable future, sales of the Company's new products
would be materially and adversely affected by market developments adverse
to Microsoft Windows, Windows 95 and Windows NT. The Company's ability to
develop products using the Microsoft Windows, Windows 95, and Windows NT
environments is substantially dependent on its ability to gain timely
access to, and to develop expertise in, current and future developments by
Microsoft, of which there can be no assurance. Moreover, the abandonment by
Microsoft of its current operating system, product line or strategy, or the
decision by Microsoft to develop and market products that directly or
indirectly compete with the Company's products would have a material
adverse effect on the Company's business, financial condition, and results
of operations.
PRODUCT RETURNS. Consistent with industry practice, the Company allows
distributors, retailers, and end users to return products for credits
towards the purchase of additional products. In addition, the Company's
promotional activities, including free trial and satisfaction guaranteed
offers, and competitors' promotional or other activities could cause
returns to increase sharply at any time. The Company expects that the rate
of product returns may increase as it introduces new versions of its
existing products and records additional reserves accordingly. Product
returns that exceed the Company's reserves could have a material adverse
effect on the Company's business, financial condition, and results of
operations.
PRICE PROTECTION. In the event the Company reduces its prices, the Company
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credits its distributors for the difference between the purchase price of
products remaining in their inventory and the Company's reduced price for
such product ("Price Protection"). Price Protection may have a material
adverse effect on future operating results, since the Company seeks to
continually introduce new and enhanced products and is likely to face
increasing price competition.
RESEARCH AND DEVELOPMENT COSTS. The development of sophisticated software
products is a lengthy and capital intensive process and is subject to
unforeseen risks, delays, problems and costs. There can be no assurance
that the Company will be able to successfully develop any additional
products or enhance existing products, or that unanticipated technical or
other problems will not occur which would result in delays in the Company's
development program. Failure to complete development of a product could
result in the complete loss of the funds committed by the Company to that
product, which could be substantial.
UTILIZATION OF NET OPERATING LOSS CARRYFORWARD. Realization of future tax
benefits from utilization of the Company's net operating loss carryforwards
for income tax purposes is limited by changes in ownership.
RISK OF EXPANSION STRATEGY The expansion of the Company's product line has
extended its resources, and is expected to continue to extend the Company's
management and operations, including its sales, marketing, customer
support, research and development, and finance and administrative
operations. The Company's future performance will depend in part on its
ability to manage growth, should that occur, and to adapt its operational
and financial control systems, if necessary, to respond to changes
resulting from such growth. The failure of the Company's management to
respond to and manage growth effectively could have a material adverse
effect on the Company's business, financial condition, and results of
operations.
PROTECTION OF PROPRIETARY RIGHTS. The Company's success depends heavily
upon its proprietary technology. It relies on a combination of copyright,
trademark, and trade secret laws, confidentiality procedures, and licensing
arrangements to establish and protect its proprietary rights. As part of
its confidentiality procedures, the Company generally enters into
non-disclosure agreements with its employees and distributors, and limits
access to and distribution of its software, documentation, and other
proprietary information. Despite these precautions, it may be possible for
a third party to copy or otherwise obtain and use the Company's products or
technology without authorization, or to develop similar technology
independently. In addition, effective protection of intellectual property
rights may fluctuate depending on judicial interpretation of applicable law
and may be unavailable or limited in certain foreign countries.
The Company provides its products to end-users primarily under
"shrink-wrap" license agreements included within the packaged software.
These agreements are not negotiated with or signed by the licensee, and
thus these agreements may not be enforceable in certain jurisdictions where
enforcement is either expensive or limited for other reasons. Protection of
intellectual property is extremely expensive.
The Company is not aware of any instances where any of its products
infringe the proprietary rights of third parties. There can be no
assurance, however, that third parties will not claim such infringement by
the Company with respect to current or future products or that management
of the Company is aware of all potential claims of infringements. Any such
claims, with or without merit, could result in costly litigation or might
require the Company to enter into royalty or licensing agreements.
POSSIBLE DILUTION DUE TO ISSUANCE OF ADDITIONAL COMMON STOCK; MARKET
OVERHANG. As of September 30, 1996, the Company had issued 13,182,086
shares of Common Stock. As of such date, (i) at least 50,000 shares of
Common Stock, subject to a predetermined formula, were issuable upon the
conversion of Series C Preferred Stock, (ii) 5,121,206 shares of Common
Stock were issuable upon the exercise of outstanding warrants issued by the
Company, and (iii) 1,868,795 shares of Common Stock were issuable upon the
exercise of outstanding options issued by the Company. Furthermore, the
Company may conduct additional offerings of its Common Stock or securities
convertible into Common Stock.
As a result of the above transactions, the voting power of each holder of
Common Stock may be diluted by the issuance of additional shares of Common
Stock. Also, the book value per share of Common Stock may be reduced upon
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the exercise of outstanding options or warrants or the conversion of
outstanding convertible preferred stock, depending upon the exercise price
of the options or warrants and the conversion ratio of the preferred stock,
and the book value per share of Common Stock, at the time of such exercise
or conversion.
Furthermore, the prevailing market price for the Common Stock may be
materially and adversely affected by the addition of a substantial number
of shares of Common Stock, including the shares offered hereby, into the
market or by the registration under the Securities Act of such additional
shares. In addition, the prospect of future sales of shares of Common Stock
issuable upon the exercise of outstanding warrants and options may have a
depressive effect upon the market price of the Common Stock, as such
warrants and options would be more likely to be exercised at a time when
the price of the Common Stock is in excess of the applicable exercise
price.
CONCENTRATION OF SHARE OWNERSHIP. Based upon the shares outstanding as of
September 30, 1996, the Company's Chairman of the Board of Directors and
the Company's officers, directors and their affiliates as a group,
beneficially own approximately 6% and 17%, respectively, of the Company's
outstanding Common Stock. These amounts include common stock issuable upon
the exercise of warrants and/or options as well as indirect ownership of
common stock. As a result, these stockholders will be able to exercise
significant influence over matters requiring stockholder approval,
including the election of directors and approval of significant corporate
transactions.
NO DIVIDENDS. The Company has not paid any dividends on its Common Stock
since inception. Under the corporate law of Delaware, the Company is
prohibited from paying dividends except in certain defined circumstances.
Included in these restrictions is the requirement that dividends be paid
out of the Company's surplus (retained earnings) or, if there is no
surplus, out of the Company's net profits for the fiscal year in which the
dividend is declared and/or the preceding fiscal year. At June 30, 1996,
the Company's balance sheet reflected an accumulated deficit of
approximately $19,433,000 which prevents it from paying dividends in the
foreseeable future.
LIMITED PUBLIC MARKET; FLUCTUATIONS IN THE COMPANY'S STOCK PRICE. Until
September 4, 1996, the Company's Common Stock was traded on the Over The
Counter Electronic Bulletin Board and, until August 22, 1996, the Vancouver
Stock Exchange, where the market is limited. The trading price of the
Company's Common Stock has historically been subject to wide fluctuation in
response to variations in the actual or anticipated operating results of
the Company, announcements of new products or technological innovations by
the Company or its competitors, and general conditions in the industry. In
addition, stock markets have experienced extreme price and volume trading
volatility in recent years. This volatility has had a substantial effect on
the market prices of securities of many high-technology companies for
reasons frequently unrelated to the operating performance of the specific
companies. These broad market fluctuations may adversely affect the market
price of the Company's Common Stock.
SHARES ELIGIBLE FOR SALE. As of September 30, 1996, the Company had
outstanding 13,182,086 shares of Common Stock of which 11,802,066 shares
are freely transferable without restriction or further registration under
the Securities Act (including 6,052,350 covered by this Prospectus). Of the
11,802,066 shares which are freely transferable, 222,069 are owned by
affiliates and are subject to the volume limitations of Rule 144. Under
Rule 144, if certain conditions are met, persons who are affiliates of the
Company and persons who satisfy a two year "holding period" may sell within
any three month period a number of shares which does not exceed the greater
of one percent of the total number of shares outstanding or the average
weekly trading volume of such shares during the four calendar weeks prior
to such sale. After a three year holding period is satisfied, persons who
are not "affiliates" of the Company are permitted to sell such shares
without regard to these volume restrictions. "Affiliates" of the Company
consist of all officers and directors of the Company and all holders of ten
percent (10%) or more of the outstanding shares of Common Stock.
9
<PAGE> 12
The Commission has proposed an amendment to Rule 144 to reduce the
aforementioned two and three year holding periods to one and two years,
respectively. If such proposed rule amendment was finalized as of September
30, 1996, the number of shares which are freely transferable and the number
of shares which are "restricted securities" would be the same.
An additional 6,990,001 shares of Common Stock which are not issued and
outstanding but which are issuable upon the exercise of warrants and
options are or may be included in currently effective registration
statements (of which 3,800,945 are covered by this Prospectus) and upon
issuance will be freely transferable during the effectiveness of such
registration statements or are included in warrants issued pursuant to
Regulation S of the Securities Act. The shares of Common Stock issuable
upon the exercise of options are subject to various vesting periods.
OUTSTANDING RIGHTS TO ACQUIRE COMMON STOCK. To the extent that outstanding
options and warrants are exercised prior to their expiration dates,
additional equity investment funds will be paid into the Company at the
expense of dilution to the interests of the Company's stockholders.
Moreover, the terms upon which the Company will be able to obtain
additional equity capital may be adversely affected since the holders of
outstanding options and warrants and other securities can be expected to
exercise or convert them at a time when the Company would, in all
likelihood, be able to obtain any needed capital on terms more favorable to
the Company than those provided in such securities.
AUTHORIZATION AND ISSUANCE OF PREFERRED STOCK. The Company's Board of
Directors is authorized to issue up to 10,000,000 shares of Preferred
Stock. The Board of Directors has the power to establish the dividend
rates, liquidation preferences, voting rights, redemption and conversion
terms and privileges with respect to any series of Preferred Stock. The
issuance of any shares of Preferred Stock having rights superior to those
of the Common Stock may result in a decrease in the value or market price
of the Common Stock. Holders of Preferred Stock may have the right to
receive dividends, certain preferences in liquidation and conversion
rights. The issuance of Preferred Stock could, under certain circumstances,
have the effect of delaying, deferring or preventing a change in control of
the Company without further vote or action by the stockholders and may
adversely affect the voting and other rights of the holders of Common
Stock.
NASDAQ SMALLCAP MARKET MAINTENANCE REQUIREMENTS; POSSIBLE DELISTING OF
SECURITIES FROM NASDAQ SMALLCAP MARKET. The Board of Governors of the
National Association of Securities Dealers, Inc. has established certain
standards for the continued listing of a security on the Nasdaq SmallCap
Market ("SmallCap"). The maintenance standards for continued listing of the
Company's Common Stock on the SmallCap require, among other things, that
(i) an issuer have assets of at least $2 million; (ii) have capital and
surplus of at least $1 million; (iii) the market value of its publicly held
shares is at least $0.2 million (in the event that the minimum bid price
per share of the Company's Common stock should fall below $1.00 per share,
the Company must maintain the market value of the public float of the
Company's shares at $1 million and $2 million in capital and surplus); (iv)
at least 100,000 shares of Common Stock are publicly held; and (v) the
issuer has at least 300 shareholders. As of June 30, 1996, the Company's
assets were approximately $7,857,000 and capital and surplus was
$6,756,000. There can be no assurance that the Company will continue to
satisfy the requirements for maintaining a SmallCap listing in the future.
If the Company's securities were excluded from SmallCap, it may adversely
affect the prices of such securities and the ability of holders to sell
them. If the Company's securities were excluded from SmallCap, the Company
would seek to re-list its securities on the Nasdaq Electronic Bulletin
Board system.
PENNY STOCK REGULATION. In the event that the Company's securities are not
listed on the SmallCap, trading would be conducted in the "pink sheets" or
through the NASD's Electronic Bulletin Board. In the absence of the Common
Stock being quoted on Nasdaq, trading in the Common Stock would be covered
by Rule 15g-9 promulgated under the Securities Exchange Act of 1934 for
non-Nasdaq and non-exchange listed securities. Under such rule,
broker/dealers who recommend such securities to persons other than
established customers and accredited investors must make a special written
suitability determination for the purchaser and receive the purchaser's
written agreement to a transaction prior to sale. Securities are exempt
from this rule if the market price is at least $5.00 per share.
10
<PAGE> 13
The Commission adopted regulations that generally define a penny stock to
be any equity security that has a market price of less than $5.00 per
share, subject to certain exceptions. Such exceptions include an equity
security listed on NASDAQ and an equity security issued by an issuer that
has (i) net tangible assets of at least $2,000,000, if such issuer has been
in continuous operation for three years, (ii) net tangible assets of at
least $5,000,000, if such issuer has been in continuous operation for less
than three years, or (iii) average revenue of at least $6,000,000 for the
preceding three years. Unless an exception is available, the regulations
require the delivery, prior to any transaction involving a penny stock, of
a disclosure schedule explaining the penny stock market and the risks
associated therewith. If the Company's Common Stock were subject to the
regulations on penny stocks, the market liquidity for the Common Stock
would be severely affected by limiting the ability of broker/dealers to
sell the Common Stock and the ability of purchasers in this offering to
sell their securities in the secondary market. There is no assurance that
trading in the Company's securities will not be subject to these or other
regulations in the future which would adversely affect the market for such
securities.
At the current time, the Company's Common Stock is listed on the Nasdaq
SmallCap Market system and its net tangible assets and average revenues are
above the minimums set forth above. Therefore, the Company's stock is not
subject to the penny stock regulations.
USE OF PROCEEDS
The proceeds from the sale of the shares of Common Stock offered hereby are
solely for the account of the Selling Stockholders. Accordingly, the Company
will receive none of the proceeds from sales thereof. Certain of the shares
offered hereby, however, are issuable upon exercise of the Warrants held by the
Selling Stockholders. Nearly all Warrants included in this Prospectus are
exercisable at $2.00 per share through January 31, 1997 and thereafter
exercisable at $2.50 per share through January 31, 1998, after which date the
Warrants expire. If all Warrants representing shares of Common Stock in this
offering are exercised before January 31, 1997, the Company will receive
aggregate proceeds therefrom of approximately $7,627,000. If all Warrants
representing shares of Common Stock in this offering are exercised after January
31, 1997, the Company will receive aggregate proceeds therefrom of approximately
$9,508,000. The proceeds from any and all Warrants exercised will be used for
working capital and general corporate purposes.
SELLING STOCKHOLDERS
In connection with the issuance of the shares of Common Stock to the Selling
Stockholders, the Company agreed to file and use its best efforts to cause to be
declared effective the Registration Statement of which this Prospectus is a
part. The Company has also agreed to use its best efforts to keep the
Registration Statement effective until the earlier of (A) one hundred eighty
(180) days from the effective date of the Registration Statement, (B) such time
as all of the shares have been sold, and (C) such date as all of the shares may
be sold under Rule 144 during a three month period. The Company has agreed to
indemnify the Selling Stockholders and each of their officers, directors,
employees, partners, legal counsel and accountants, and each underwriter, if
any, and each person who controls any such underwriter, against certain
expenses, claims, losses, damages and liabilities (or action in respect
thereof). The Company has agreed to pay its expenses of registering the shares
under the Securities Act, including registration and filing fees, blue sky
expenses, printing expenses, accounting fees, administrative expenses and its
own counsel fees.
The following table sets forth the name of each Selling Stockholder and the
number of shares of Common Stock being offered by each Selling Stockholder. The
shares of Common Stock being offered hereby are being registered to permit
public secondary trading, and the Selling Stockholders may offer all or part of
the shares for resale from time to time. See "Plan of Distribution."
11
<PAGE> 14
<TABLE>
<CAPTION>
Amount Percentage
Amount Beneficially Beneficially
Beneficially Owned Owned
Owned Prior Following Following
Name to Offering Amount Offered Offering (3) Offering
- ------------------------------------ --------------- --------------- -------------- ---------------
<S> <C> <C> <C> <C>
A. Tod Hindin and Marion L.
Hindin 20,000(2) 20,000 (2) 0 0
Aaron Miller 273,381(16) 100,782 (2) 172,599 1
Alan P. Yonack 6,000(2) 6,000 (2) 0 0
Alan Richard Dresher 40,000(2) 40,000 (2) 0 0
Alex Brown & Sons, Inc. Cust
FBO A. Thomas Turrentine R-
IRA DTD 12/26/95 16,000(2) 16,000 (2) 0 0
A. Thomas Turrentine 5,000(4) 4,000 (2) 1,000 *
Amerindo Technology Growth
Fund II 1,018,256(17) 892,965 125,291 (1) *
Andrew Edenbaum 71,633(5) 60,000 (5) 11,633 *
Apex Limited Partners, L.P. 40,000(2) 40,000 (2) 0 0
Ardent Research Partners, L.P. 180,000(2) 180,000 (2) 0 0
Brett M. Murphy 12,000(2) 12,000 (2) 0 0
Bulldog Capital Partners 716,500(18) 660,000 (2) 56,500 *
Charles Schwab & Co., Inc. FBO
Carl Zelinsky 29,656(6) 20,000 (2) 9,656 *
Carl Zelinsky 24,800(6) 20,000 (2) 4,800 *
Charles Nichols II Techvest L.P. 18,000(2) 18,000 (2) 0 0
Cindy F. Erickson , TTEE of the
Cindy F. Erickson Trust DTD
6//29/87 7,097 7,097 0 0
Cliff Berger 86,400(2) 60,000 (2) 26,400 *
D. Patrick Linehan 67,016(19) 49,902 (19) 17,114 *
DRI StarBase Warrant Holdings 224,750(1) 224,750 (1) 0 0
Daniel Ginns 195,000(7) 135,000 (2) 60,000 *
Davidi and Sandra Gilo Trustees
of The Davidi and Sandra Gilo
Trust Dated 1/18/91 36,723 28,390 8,333 *
Deborah Whelan 10,000(2) 10,000 (2) 0 0
Diana H. Brady & Van L. Brady
ttees for the Brady Family
Trust October 11, 1990 66,666(2) 66,666 (2) 0 0
Dongsuh Int'l (America), Inc. 130,000(2) 65,000 65,000 (1) *
Elliott M. Caplow 16,000(2) 16,000 (2) 0 0
Eric Ufer 5,554(2) 5,554 (2) 0 0
Etsuko Kato Benson TTE Benson
Family Trust U/A 10-30-91 668,281(8) 100,156 (2) 568,125 4
First Trust Corp. Custodian FBO
Quentin H. Rink 40,000(2) 40,000 (2) 0 0
Goldhaar Living Trust UAD 1/15/91
6,000(2) 6,000 (2) 0 0
Grant Bettingen 10,000(1) 10,000 (1) 0 0
Gregg Wiviott 12,000(2) 12,000 (2) 0 0
Gruber & McBain International 100,000(2) 100,000 (2) 0 0
</TABLE>
12
<PAGE> 15
<TABLE>
<CAPTION>
Amount Percentage
Amount Beneficially Beneficially
Beneficially Owned Owned
Owned Prior Following Following
Name to Offering Amount Offered Offering (3) Offering
- ------------------------------------ --------------- --------------- -------------- ---------------
<S> <C> <C> <C> <C>
Harold O. Miller & Marjorie E.
Miller TTEES of the Harold O.
Miller and Marjorie E. Miller
Family Living Trust of 1993 U/A
DTD 12-28-93 75,510(9) 25,344 (2) 50,166 *
Harold Wrobel 80,000(2) 80,000 (2) 0 0
Infiniti Investment Fund L.P. 280,000(2) 280,000 (2) 0 0
Intersolv, Inc. 500,000(2) 500,000 (2) 0 0
J. Steven Johnson 20,000(2) 20,000 (2) 0 0
Jacob Wizman 62,000(10) 52,000 (2) 10,000 *
JDN Partners, L.P. 150,000(2) 150,000 (2) 0 0
John R. Snedegar 135,531(15) 11,052 124,479 (15) *
John Troubh 50,000(2) 50,000 (2) 0 0
Jon-Cin & Son, L.P. 30,000(2) 30,000 (2) 0 0
Jon D. & Linda W. Gruber 30,000(2) 30,000 (2) 0 0
Jon D. Gruber 50,000(2) 50,000 (2) 0 0
Joseph Musto 18,000(2) 18,000 (2) 0 0
Keith Benson 9,000 9,000 0 0
Kevin Dieterich 40,000(2) 40,000 (2) 0 0
Lagunitas Partners, L.P. 620,000(2) 620,000 (2) 0 0
Larry Altman 40,000(2) 40,000 (2) 0 0
Lawrence Gibson & Victor Nostas
Tenants in Common 72,000(11) 72,000 (11) 0 0
Lily Cates 383,837 383,837 0 0
Marshall Aronow 60,000(2) 60,000 (2) 0 0
Michael G. Lyons 170,610(13) 110,182 (13) 60,428 (13) *
Michael Potack 6,000(2) 6,000 (2) 0 0
Michael Zurawin 30,000(2) 15,000 15,000 (1) *
Mindful Partners, L.P. 300,000(2) 300,000 (2) 0 0
Mitchell Katz 24,000(2) 24,000 (2) 0 0
Neil Rosenfeld 22,000(20) 20,000 (2) 2,000 *
Perry Oretzky, an Accountancy
Corporation Retirement Trust 20,000(2) 20,000 (2) 0 0
Phillip Mabry 20,000(2) 20,000 (2) 0 0
Porter Partners, L.P. 120,000(2) 120,000 (2) 0 0
Quentin Rink 133,416(12) 132,750 (2) 666 *
Rainbow Trading Partners, Ltd. 66,666(2) 66,666 (2) 0 0
Rainbow Trading Venture Partners,
L.P. 56,666(2) 56,666 (2) 0 0
Recovery Fund L.P. 50,000(2) 50,000 (2) 0 0
Renwick Capital Management 20,000(22) 20,000 (22) 0 0
Richard G. D'Auteuil 16,000(2) 16,000 (2) 0 0
Robert C. Fitzwilson TTEE of the
Robert C Fitzwilson Trust Dated
6/24/87 7,097 7,097 0 0
Robert F. McCullough 300,000(2) 300,000 (2) 0 0
</TABLE>
13
<PAGE> 16
<TABLE>
<CAPTION>
Amount Percentage
Amount Beneficially Beneficially
Beneficially Owned Owned
Owned Prior Following Following
Name to Offering Amount Offered Offering (3) Offering
- ------------------------------------ --------------- --------------- -------------- ---------------
<S> <C> <C> <C> <C>
Robert F. McCullough & Barbara C.
McCullough ttees McCullough
Living Trust 140,000(2) 140,000 (2) 0 0
Robert McCullough Jr. 60,000(2) 60,000 (2) 0 0
Sam Bernstein 8,000(2) 8,000 (2) 0 0
Sanford H. Mendelson TTEE of
the Mendelson Trust dtd
3/10/89 6,000(2) 6,000 (2) 0 0
Scott Grayson 20,000(2) 20,000 (2) 0 0
Seth Sholes 40,000(2) 40,000 (2) 0 0
Stanford C. Finney, Jr. 66,666(2) 66,666 (2) 0 0
Stephen Lehman 30,000(2) 30,000 (2) 0 0
Stephen T. Sohmer Trust 4/20/93 100,000(2) 100,000 (2) 0 0
Stephen W. Leahy 97,000(2) 97,000 (2) 0 0
Steve Morton 16,000(2) 16,000 (2) 0 0
Steven Antebi 50,000(2) 50,000 (2) 0 0
Steven L. Basta 25,000(2) 25,000 (2) 0 0
Storie Partners, L.P. 950,000(2) 950,000 (2) 0 0
Susan Jackson 54,845 54,845 0 0
The Board of Pension
Commissioners of the City of
Los Angeles 959,593 959,593 0 0
The Kemajo Family, L.P. 75,000(2) 75,000 (2) 0 0
The Meier Group 20,000(2) 20,000 (2) 0 0
The Stephen P. Rader & Anne
W. Rader Living Trust
dtd 9/9/94 40,000(2) 40,000 (2) 0 0
Thomas R. Schiff 10,000(2) 10,000 (2) 0 0
Timothy G. Ewing 10,000(2) 10,000 (2) 0 0
Vicki Arkin Warner 40,000(2) 40,000 (2) 0 0
Whelan & Gratny Capital
Management 25,000(2) 25,000 (2) 0 0
William Brady 50,000(2) 50,000 (2) 0 0
William F. Bell & Margaret Bell
TTEES Bell Family Trust DTD
2-3-84 25,000(2) 25,000 (2) 0 0
William J. Weiland 20,000(2) 20,000 (2) 0 0
William L. Kostelecky & Beatrice
B. Kostelecky TR. UA 7/20/88
FBO Kostelecky Trust 67,000(21) 50,000 (2) 17,000 *
William R. Stow III 773,416(14) 33,333 740,083 (14) 6
- ------------
<FN>
(1) These shares may be acquired upon the exercise of a warrant to purchase
Common Stock at an exercise price of $2.00, or subsequent to January 31,
1997, $2.50 per share.
(2) Of these shares, one half (50%) may be acquired upon the exercise of a
warrant to purchase Common Stock at an exercise price of $2.00, or
subsequent to January 31, 1997, $ 2.50 per share.
(3) Assumes no sales are effected by the Selling Security Holder during the
offering period other than pursuant to this Registration Statement.
14
<PAGE> 17
(4) Includes 2,000 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(5) Includes 30,000 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $3.51 (Canadian) through September 8,
1997.
(6) Includes 10,000 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(7) Includes 67,500 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(8) Includes 50,078 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share. The estate is of a founder and former officer of the
Company.
(9) Includes 12,672 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(10) Includes 26,000 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(11) Mr. Gibson was an independent contractor who provided investor relations
services to the Company. Includes 36,000 shares of Common Stock issuable
upon the exercise of warrants at an exercise price of $2.00, or subsequent
to January 31, 1997, $2.50 per share.
(12) Includes 66,375 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(13) Mr. Lyons is a member of the Board of Directors. The shares being
registered include 46,451 shares of Common Stock issuable upon the
exercise of warrants at an exercise price of $2.00, or subsequent to
January 31, 1997, $2.50 per share. The Amount Beneficially Owned Prior to
and Following Offering includes 20,832 shares of Common Stock issuable
upon the exercise of options.
(14) Mr. Stow is a member of the Board of Directors. The Amount Beneficially
Owned Prior to and Following Offering includes 164,666 shares of Common
Stock issuable upon the exercise of options.
(15) Mr. Snedegar is a member of the Board of Directors. The Amount
Beneficially Owned Prior to and Following Offering includes 13,333 shares
of Common Stock issuable upon the exercise of options.
(16) Includes 50,391 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(17) Includes 125,291 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(18) Includes 330,000 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(19) Mr. Linehan is a former officer and former member of the Board of
Directors. Includes 24,118 shares of Common Stock issuable upon the
exercise of warrants at an exercise price of $2.00, or subsequent to
January 31, 1997, $2.50 per share.
(20) Includes 10,000 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(21) Includes 25,000 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $2.00, or subsequent to January 31, 1997,
$2.50 per share.
(22) Includes 10,000 shares of Common Stock issuable upon the exercise of
warrants at an exercise price of $3.51 (Canadian) through September 8,
1997.
* Represents less than one percent.
Except as set forth in the Notes above, no Selling Stockholder has held any
position or office, or has had any material relationship, with the Company or
any of its affiliates within the past three years.
</FN>
</TABLE>
15
<PAGE> 18
PLAN OF DISTRIBUTION
The Selling Stockholders may sell Shares in any of the following transactions:
(i) through dealers; (ii) through agents; or (iii) directly to one or more
purchasers. The distribution of the Shares by the Selling Stockholders may be
effected from time to time in one or more transactions in the over-the-counter
market, in the Nasdaq SmallCap Market or in privately negotiated transactions at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Selling Stockholders and
any underwriters, dealers or agents that participate in the distribution of the
Shares may be deemed to be underwriters within the meaning of Section 2(11) of
the Securities Act, and any profit on the sale of the Shares by them and any
discounts, concessions or commissions received by any such underwriters, dealers
or agents might be deemed to be underwriting discounts and commissions under the
Securities Act. At the time a particular offer of shares is made, to the extent
required, a Prospectus Supplement will be distributed which will set forth the
aggregate number of Shares being offered and the terms of the offering,
including the name or names of any underwriters, dealers or agents, any
discounts, concessions or commissions and other items constituting compensation
from the Selling Stockholders and any discounts, commissions or concessions
allowed or re-allowed or paid to dealers.
Certain of the underwriters, dealers or agents may have other business
relationships with the Company and its affiliates in the ordinary course of
business.
TRANSFER AGENT
The Transfer Agent and Registrar for the Common Stock is American Stock Transfer
& Trust Company, 40 Wall Street, New York, New York 10005; its telephone number
is (212) 936-5100.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been passed upon
for the Company by Parker Chapin Flattau & Klimpl, LLP, 1211 Avenue of the
Americas, New York, New York 10036-8735; its telephone number is (212) 704-6000.
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K, as amended, for the year ended March 31, 1996 have
been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
16
<PAGE> 19
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS IN
CONNECTION WITH THIS OFFERING MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR BY THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE OF THIS PROSPECTUS.
----------------
TABLE OF CONTENTS PAGE
- --------------------------------------------------------------- -----------
Available Information 5
Incorporation of Certain Documents by Reference 5
Risk Factors 5
Use of Proceeds 11
Selling Stockholders 11
Plan of Distribution 16
Legal Matters 16
Experts 16
- ------------------------------------------------------------------------------
9,853,295 SHARES
STARBASE CORPORATION
COMMON STOCK
(Par Value $0.01 per Share)
-------------
PROSPECTUS
--------------
October 16, 1996
17
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses payable by the Company in
connection with the issuance and distribution of the securities being registered
hereunder, other than underwriting discounts and commissions. Except for the
SEC registration fee, all amounts are estimates.
SEC Registration Fee $ 12,137
Printing and Engraving Expenses 3,000
Legal Fees and Expenses 5,000
Accounting Fees and Expenses 5,000
Registrar and Transfer Agent Fees and Expenses 1,000
Blue Sky Fees and Expenses 5,000
Miscellaneous Expenses 3,000
=============
Total $ 34,137
=============
All of the costs identified above will be paid by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the General Corporation Law of Delaware ("Delaware Law")
enables a corporation in its original certificate of incorporation or an
amendment thereto to eliminate or limit the personal liability of a director to
a corporation or its stockholders for violations of the director's fiduciary
duty, except (i) for any breach of a director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the Delaware Law (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions), or (iv) for any transaction from which a director derived an
improper personal benefit. The Certificate of Incorporation of the Company, as
amended, provides in effect for the elimination of the liability of directors to
the extent permitted by Delaware Law.
Section 145 of the Delaware Law provides, in summary, that directors and
officers of Delaware corporations are entitled, under certain circumstances, to
be indemnified against all expenses and liabilities (including attorney's fees)
incurred by them as a result of suits brought against them in their capacity as
a director or officer, if 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 or proceeding, if they had
no reasonable cause to believe their conduct was unlawful; provided, that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, they
are fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper. Any such indemnification may be made by the corporation
only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct. The Company's By-laws
entitle officers and directors of the Company to indemnification to the fullest
extent permitted by Delaware Law.
The Company has entered into an agreement with each of its directors and certain
officers which provide for indemnification by the Company against certain
liabilities, including liabilities under the Securities Act. In addition, the
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<PAGE> 21
Company maintains an insurance policy with respect to potential liabilities of
its directors and officers, including potential liabilities under the Securities
Act.
See Item 17 of this Registration Statement regarding the opinion of the
Securities and Exchange Commission with respect to indemnification for
liabilities arising under the Securities Act.
ITEM 16. EXHIBITS.
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
- -------- -------------------------------------------------------------------
4.1 Amended and Restated Certificate of Incorporation of the Company
4.2 Amended and Restated By-Laws of the Company
4.3 Registration Rights Agreement Dated May 1996
5.1 Opinion of Parker Chapin Flattau & Klimpl, LLP
23.1 Consent of Parker Chapin Flattau & Klimpl, LLP (included in
Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Powers of Attorney of certain directors and officers of the
Company (included as part of Signature Pages)
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended ("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 such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for 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,
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<PAGE> 22
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.
Insofar as indemnification for liabilities arising under the Securities Act of
1933, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15
above, 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 of 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.
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<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 October 16, 1996.
STARBASE CORPORATION
By: /s/ Robert W. Leimena
Robert W. Leimena
Chief Financial Officer
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<PAGE> 24
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
SIGNATURE TITLE DATE
* Chairman of the Board October 15, 1996
- -----------------------------
William R. Stow III
* Director October 15, 1996
- -----------------------------
Michael G. Lyons
* Director October 15, 1996
- -----------------------------
Roger C. Ferguson
* President, Chief Executive October 15, 1996
- ----------------------------- Officer, and Director
Alan M. Davis (principal executive officer)
* Director October 15, 1996
- -----------------------------
John R. Snedegar
* Director October 15, 1996
- -----------------------------
Kenneth A. Sexton
* Director October 15, 1996
- -----------------------------
Gary E. Gratny
* Director October 15, 1996
- -----------------------------
Phillip E. Pearce
/s/ Robert W. Leimena Chief Financial Officer October 15, 1996
- ----------------------------- (principal financial and
Robert W. Leimena accounting officer
* by Robert W. Leimena
attorney-in-fact
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<PAGE> 25
EXHIBIT INDEX
SEQUENTIAL
EXHIBIT PAGE
NO. DESCRIPTION OF EXHIBIT NO./REF.
- ------- ---------------------------------------------------------- ---------
4.1 Amended and Restated Certificate of
Incorporation of the Company (B)
4.2 Amended and Restated By-Laws of the Company (A)
4.3 Registration Rights Agreement Dated May 1996 (C)
5.1 Opinion of Parker Chapin Flattau & Klimpl, LLP II-7
23.1 Consent of Parker Chapin Flattau & Klimpl, LLP (included in
Exhibit 5.1) II-7
23.2 Consent of Price Waterhouse LLP II-8
24.1 Powers of Attorney of certain directors and
officers of the Company (D)
(A) Incorporated herein by reference to the Company's Registration Statement on
Form SB-2 (file number 33-68228) filed with the Commission on November 2,
1993.
(B) Incorporated herein by reference to the Company's Registration Statement on
Form 10 (file number 0-25612) filed with the Commission on February 23,
1995.
(C) Incorporated herein by reference to the Company's Form 8-K (file number
0-25612) filed with the Commission on May 16, 1996.
(D) Included as part of the signature page on page II-5 of this filing.
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<PAGE> 26
Exhibit 5.1
OPINION OF PARKER CHAPIN FLATTAU & KLIMPL, LLP
October 15, 1996
StarBase Corporation
18872 MacArthur Boulevard
Irvine, CA 92612
Ladies and Gentlemen:
We have acted as counsel to StarBase Corporation (the "Company") in connection
with a Registration Statement of Form S-3 (file no. 333-13231) filed by the
Company with the Securities and Exchange Commission (the "Registration
Statement") relating to up to 9,853,295 shares (the "Shares") of the Company's
Common Stock, par value $0.01 per share (the "Common Stock"). Of such Shares,
3,800,945 may be issued upon the exercise of warrants which were issued to the
holders of the Shares (the "Warrants").
In connection with the foregoing, we have examined, among other things, the
Registration Statement, the Warrants and originals or copies, satisfactory to
us, of all such corporate records and of all such agreements, certificates and
other documents as we have deemed relevant and necessary as a basis for the
opinion hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the original documents submitted to us as
copies. As to any facts material to such opinion, we have, to the extent that
relevant facts were not independently established by us, relied on certificates
of public officials and certificates, oaths and declarations of officers or
other representatives of the Company.
Based upon the foregoing, we are of the opinion that (i) the Shares have been
legally issued and are fully paid and non-assessable; and (ii) the Shares
issuable upon the exercise of the Warrants (when such Shares are paid for and
issued in accordance with the terms of the Warrants) will be legally issued,
fully paid and non-assessable.
We hereby consent to the use of our name under the caption "Legal Matters" in
the Prospectus constituting a part of the Registration Statement and to the
filing of a copy of this opinion as an exhibit.
Very truly yours,
/s/ Parker Chapin Flattau & Klimpl, LLP
PARKER CHAPIN FLATTAU & KLIMPL, LLP
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<PAGE> 27
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
June 20, 1996, except for Note 7, as to which the date is July 16, 1996
appearing on page 26 of StarBase Corporation's Annual Report on Form 10-K, as
amended, for the year ended March 31, 1996. We also consent to the reference to
us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Costa Mesa, California
October 15, 1996
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