| Delaware | 02-0405716 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
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Title of Securities to be Registered
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Amount to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Share
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Proposed
Maximum
Offering Price
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Amount of
Registration Fee(4)
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2011 Equity Compensation and Incentive Plan, Common Stock, $.01 par value
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537,500 shares
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$13.42(2)
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$7,213,250
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$826.64
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2011 Equity Compensation and Incentive Plan, Common Stock, $.01 par value
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62,500 shares
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$4.97(3)
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$310,625
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$35.60
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Total
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600,000 shares
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$7,523,875
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$862.24
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(1)
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In addition to the 600,000 shares of Common Stock, $.01 par value per share (the “Common Stock”), of Datawatch Corporation (“Datawatch” or the “Company”) registered hereunder for issuance under Datawatch’s 2011 Equity Compensation and Incentive Plan (the “2011 Plan”), this Registration Statement shall also cover (i) the number of shares of Common Stock remaining available for grant and previously registered for issuance under the Company’s 2006 Equity Compensation and Incentive Plan (the “2006 Plan”) as of the date of the 2011 Plan’s adoption by the stockholders of the Company, plus (ii) the number of shares of Common Stock that would have become available for issuance under the 2006 Plan following the adoption of
the 2011 Plan due to the expiration, termination, surrender or forfeiture of an award under the 2006 Plan.
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(2)
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The price of $13.42 per share, which is the average of the high and low sale prices per share of Common Stock on the NASDAQ SmallCap Market on April 16, 2012 is set forth solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act of 1933, as amended (the “Securities Act”) and has been used only for those shares without a fixed exercise price.
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(3)
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Such shares are issuable upon exercise of outstanding options with fixed exercise prices. Pursuant to Rule 457(h) of the Securities Act, the aggregate offering price and the fee have been computed upon the basis of the price at which the options may be exercised.
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(4)
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Calculated pursuant to Section 6(b) of the Securities Act of 1933, as amended.
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(a)
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Datawatch’s Annual Report on Form 10-K for the fiscal year ended September 30, 2011 (File No. 000-19960);
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(b)
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Datawatch’s Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 2011 (File No. 000-19960) and Datawatch’s Current Reports on Form 8-K filed on November 15, 2011, January 26, 2012, March 2, 2012 and April 5, 2012 (File No. 000-19960); and
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(c)
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The section entitled “Description of Registrant’s Securities to be Registered” contained in Datawatch’s Registration Statement on Form S-1, as amended, which was incorporated by reference in Datawatch’s Registration Statement on Form 8-A filed pursuant to Section 12(g) of the Exchange Act (File No. 33-46290).
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Exhibit 4.1
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Specimen certificate representing the Common Stock of Datawatch (filed as Exhibit 4.4 to our Registration Statement on Form S-1 previously filed with the SEC (File No. 33-46290) and incorporated herein by reference).
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Exhibit 4.2
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Restated Certificate of Incorporation of Datawatch (filed as Exhibit 3.2 to our Registration Statement on Form S-1 previously filed with the SEC (File No. 33-46290) and incorporated herein by reference).
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Exhibit 4.3
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Certificate of Amendment to the Restated Certificate of Incorporation of Datawatch (filed as Exhibit 3.2 to the our Annual Report on Form 10-K for the fiscal year ended September 30, 2001 previously filed with the SEC (File No. 000-19960) and incorporated herein by reference).
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Exhibit 4.4
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By-laws, as amended, of Datawatch (filed as Exhibit 3.3 to our Registration Statement on Form S-1 previously filed with the SEC (File No. 33-46290) and incorporated herein by reference).
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Exhibit 4.5
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2011 Equity Compensation and Incentive Plan of Datawatch (filed as Appendix A to our Definitive Proxy Statement on Schedule 14A filed with the SEC on March 17, 2011 (File No. 000-19960) and incorporated herein by reference).
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Exhibit 5.1
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Opinion of Choate, Hall & Stewart LLP.
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Exhibit 23.1
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Consent of Marcum LLP.
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Exhibit 23.2
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Consent of Choate, Hall & Stewart LLP (included in Exhibit 5.1).
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Exhibit 24.1
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Power of Attorney (included as part of the signature page to this Registration Statement).
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(ii)
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To reflect in the Prospectus any facts or events arising after the effective date of this Registration Statement 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 and of the estimated maximum offering range may be reflected in the form of Prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective
Registration Statement.
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(iii)
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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.
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(2)
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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.
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(3)
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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.
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(b)
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Datawatch hereby undertakes that, for purposes of determining any liability under the Securities Act to any purchaser, each filing of Datawatch’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.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of Datawatch pursuant to the provisions described in Item 6, or otherwise, Datawatch has been advised that in the opinion of the SEC 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 Datawatch of expenses incurred or paid by a director, officer or controlling person of Datawatch 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, Datawatch will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURE
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TITLE
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DATE
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/s/ Michael A. Morrison
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President, Chief Executive Officer and Director
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April 24, 2012
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Michael A. Morrison
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(Principal Executive Officer)
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/s/ Murray P. Fish
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Chief Financial Officer, Treasurer, Vice President of Finance and Secretary
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April 24, 2012
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Murray P. Fish
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(Principal Financial and Accounting Officer)
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/s/ Richard de J. Osborne
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Chairman of the Board
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April 24, 2012
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Richard de J. Osborne
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/s/ Thomas H. Kelly
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Director
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April 24, 2012
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Thomas H. Kelly
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/s/ Terry W. Potter
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Director
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April 24, 2012
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Terry W. Potter
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/s/ William B. Simmons, Jr.
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Director
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April 24, 2012
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William B. Simmons, Jr.
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/s/ David C. Mahoney
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Director
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April 24, 2012
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David C. Mahoney
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Exhibit 4.1
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Specimen certificate representing the Common Stock of Datawatch (filed as Exhibit 4.4 to our Registration Statement on Form S-1 previously filed with the SEC (File No. 33-46290) and incorporated herein by reference).
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Exhibit 4.2
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Restated Certificate of Incorporation of Datawatch (filed as Exhibit 3.2 to our Registration Statement on Form S-1 previously filed with the SEC (File No. 33-46290) and incorporated herein by reference).
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Exhibit 4.3
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Certificate of Amendment to the Restated Certificate of Incorporation of Datawatch (filed as Exhibit 3.2 to the our Annual Report on Form 10-K for the fiscal year ended September 30, 2001 previously filed with the SEC (File No. 000-19960) and incorporated herein by reference).
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Exhibit 4.4
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By-laws, as amended, of Datawatch (filed as Exhibit 3.3 to our Registration Statement on Form S-1 previously filed with the SEC (File No. 33-46290) and incorporated herein by reference).
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Exhibit 4.5
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2011 Equity Compensation and Incentive Plan of Datawatch (filed as Appendix A to our Definitive Proxy Statement on Schedule 14A filed with the SEC on March 17, 2011 (File No. 000-19960) and incorporated herein by reference).
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Exhibit 5.1
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Opinion of Choate, Hall & Stewart LLP.
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Exhibit 23.1
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Consent of Marcum LLP.
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Exhibit 23.2
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Consent of Choate, Hall & Stewart LLP (included in Exhibit 5.1).
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Exhibit 24.1
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Power of Attorney (included as part of the signature page to this Registration Statement).
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