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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 13D/A
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Under the Securities Exchange Act
of 1934
(Amendment No. 1)*
(Name of Issuer)
Common
Stock, $0.01 par value per share
(Title of Class of Securities)
(CUSIP Number)
Richard N. Sayles
KVO Capital Management, LLC
33 S. Main Street
Hanover, NH 03755
(603) 643-0500
with
a copy to:
Alexander
S. Glovsky, Esq.
Nutter,
McClennen & Fish, LLP
World
Trade center West
155
Seaport Boulevard
Boston,
MA 02210
(617)
439-2618
(Name, Address and
Telephone Number of Person
Authorized to Receive Notices and Communications)
(Date of Event Which
Requires Filing of this Statement)
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule
13d-1(g), check the following box.
o
The information required on the remainder of this
cover page shall not be deemed to be "filed" for the purpose of
Section 18 of the Securities Exchange Act of 1934 ("Act") or
otherwise subject to the liabilities of that section of the Act but shall be
subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 237917208
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(1)
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Names of Reporting Persons:
KVO Capital Management, LLC
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(2)
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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x
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(3)
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SEC Use Only
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(4)
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Source of Funds (See
Instructions):
OO
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(5)
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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(6)
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Citizenship or Place of Organization:
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With:
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(7)
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Sole Voting Power:
342,345
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(8)
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Shared Voting Power:
0 (see Item 5)
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(9)
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Sole Dispositive Power:
342,345
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(10)
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Shared Dispositive Power:
0 (see Item 5)
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(11)
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Aggregate Amount
Beneficially Owned by Each Reporting Person
:
342,345 (see Item 5)
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(12)
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Check if the Aggregate Amount
in Row 11 Excludes Certain Shares (See Instructions)
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(13)
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Percent of Class
Represented by Amount in Row 11:
5.76%
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(14)
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Type of Reporting Person
(See Instructions):
IA
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2
CUSIP No. 237917208
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(1)
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Names of Reporting Persons:
Kernan V. Oberting
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(2)
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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x
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(3)
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SEC Use Only
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(4)
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Source of Funds (See
Instructions):
OO
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(5)
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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(6)
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Citizenship or Place of Organization:
United States
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With:
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(7)
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Sole Voting Power:
0
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(8)
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Shared Voting Power:
342,345 (See Item 5)
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(9)
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Sole Dispositive Power:
0
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(10)
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Shared Dispositive Power:
342,345 (See Item 5)
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(11)
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Aggregate Amount
Beneficially Owned by Each Reporting Person
:
342,345 (See Item 5)
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(12)
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Check if the Aggregate
Amount in Row 11 Excludes Certain Shares (See Instructions)
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(13)
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Percent of Class
Represented by Amount in Row 11:
5.76%
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(14)
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Type of Reporting Person
(See Instructions):
IN
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3
CUSIP No. 237917208
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(1)
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Names of Reporting Persons:
Robert B. Ashton
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(2)
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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x
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(3)
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SEC Use Only
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(4)
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Source of Funds (See
Instructions):
PF
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(5)
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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(6)
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Citizenship or Place of Organization:
United States
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With:
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(7)
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Sole Voting Power:
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(8)
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Shared Voting Power:
31,235 (See Item 5)
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(9)
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Sole Dispositive Power:
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(10)
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Shared Dispositive Power:
31,235 (See Item 5)
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(11)
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Aggregate Amount
Beneficially Owned by Each Reporting Person
:
31,235 (See Item 5)
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(12)
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Check if the Aggregate
Amount in Row 11 Excludes Certain Shares (See Instructions)
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(13)
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Percent of Class
Represented by Amount in Row 11:
0.53%
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(14)
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Type of Reporting Person
(See Instructions):
IN
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4
Item 1. Security and Issuer
Security:
Common Stock, $0.01 par value per share
Issuer:
Datawatch Software
271
Mill Road
Chelmsford,
MA 01824
Item 2. Identity and Background
Item
2 is hereby amended and restated in its entirety to read as follows:
(a) Name of person filing
(b) Residence or business address
(c) Present principal occupation or employment and the
name, principal business and address of any corporation or other organization
in which such employment is conducted
(f) Citizenship
KVO
Capital Management, LLC
33
S. Main Street
Hanover,
NH 03755
Citizenship:
Delaware
Kernan
V. Oberting
c/o
KVO Capital Management, LLC
33
S. Main Street
Hanover,
NH 03755
Present
occupation: Managing Member, KVO Capital Management, LLC
Citizenship:
United States
Robert
B. Ashton
c/o
KVO Capital Management, LLC
33
S. Main Street
Hanover,
NH 03755
Present
occupation: Portfolio Manager, KVO Capital Management, LLC
Citizenship:
United States
(d) Whether or not, during the last five years, such
person has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) and, if so, give the dates, nature of
conviction, name and location of court, any penalty imposed, or other
disposition of the case;
None
of the reporting persons has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) Whether or not, during the last five years, such
person was a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws; and, if so, identify
and describe such proceedings and summarize the terms of such judgment, decree
or final order; and
During
the last five years, none of the reporting persons has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and
as a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
5
This statement is filed by
KVO Capital Management, LLC (KVO), Kernan V. Oberting (Mr. Oberting)
and Robert B. Ashton (Mr. Ashton).
KVO, Mr. Oberting and Mr. Ashton have entered into a Joint
Filing Agreement, a copy of which is filed with this Schedule 13D as Exhibit 99.1,
pursuant to which they have agreed to file this Schedule 13D jointly in
accordance with the provisions of Rule 13d-1(k) of the Securities
Exchange Act of 1934, as amended.
The executive officers of
KVO are Mr. Oberting, whose information appears above, and Richard N.
Sayles (Mr. Sayles), chief compliance officer. The business address of Mr. Sayles is 33
S. Main Street, Hanover, NH 03755, and he is a citizen of the United
States. To the knowledge of the undersigned, during the last five
years, Mr. Sayles has not been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors), and was not a party to
a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which he was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities law or finding any violation
with respect to such laws.
Item 3. Source
and Amount of Funds or Other Consideration
Item
3 is hereby amended and restated in its entirety to read as follows:
State the source and the amount of funds or other
consideration used or to be used in making the purchases, and if any part of
the purchase price is or will be represented by funds or other consideration
borrowed or otherwise obtained for the purpose of acquiring, holding, trading
or voting the securities, a description of the transaction and the names of the
parties thereto. Where material, such information should also be provided with
respect to prior acquisitions not previously reported pursuant to this
regulation. If the source of all or any part of the funds is a loan made in the
ordinary course of business by a bank, as defined in
Section 3(a)(6) of the Act, the name of the bank shall not be made
available to the public if the person at the time of filing the statement so
requests in writing and files such request, naming such bank, with the
Secretary of the Commission. If the securities were acquired other than by
purchase, describe the method of acquisition.
The
aggregate purchase price of the 342,345 shares purchased by KVO to date was
$843,107 (including commissions). The
source of funding for the purchase of these shares was the investment capital
contained in the respective accounts, including $253,709 received upon the sale
of 329,842 shares of Datawatch (See Appendix A for a list of KVOs transactions
in the securities during the last 60 days).
All
of the shares reported on this Schedule 13D are held by KVO in margin accounts.
Such margin accounts may from time to time have debit balances. Since other
securities are held in such margin accounts, it is not possible to determine
the amounts, if any, of margin used with respect to the purchase of the shares.
Item 4. Purpose of Transaction
State the purpose or purposes of the acquisition of
securities of the issuer.
The
shares were acquired for investment purposes.
Describe any plans or proposals which the reporting persons
may have which relate to or would result in:
a.
The acquisition by any person of additional securities of the issuer, or
the disposition of securities of the issuer;
b.
An extraordinary corporate transaction, such as a merger, reorganization
or liquidation, involving the issuer or any of its subsidiaries;
c.
A sale or transfer of a material amount of assets of the issuer or any of
its subsidiaries;
d.
Any change in the present board of directors or management of the issuer,
including any plans or proposals to change the number or term of directors or
to fill any existing vacancies on the board;
e.
Any material change in the present capitalization or dividend policy of
the issuer;
f.
Any other material change in the issuers business or corporate
structure, including but not limited to, if the issuer is a registered
closed-end investment company, any plans or proposals to make any
6
changes in
its investment policy for which a vote is required by Section 13 of the
Investment Company Act of 1940;
g.
Changes in
the issuers charter, bylaws or instruments corresponding thereto or other
actions which may impede the acquisition of control of the issuer by any
person;
h.
Causing a
class of securities of the issuer to be delisted from a national securities
exchange or to cease to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association;
i.
A class of equity securities of the issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Act;
or
j.
Any action
similar to any of those enumerated above.
The
shares of common stock of Datawatch Corporation (referred to herein as
Datawatch, the Issuer or the Company) covered by this Schedule 13D were
acquired by the Reporting Person for investment purposes in the ordinary course
of business.
We will continue to consider various alternative
courses of action with respect to our investment as we deem appropriate in
light of the circumstances existing from time to time. Such actions may include
seeking to purchase additional shares of common stock of Datawatch, seeking to
acquire all of the outstanding common stock of Datawatch, or, alternatively,
seeking to sell all or a portion of the shares we hold, in any such case, in
open market or privately negotiated transactions. In determining whether to
purchase or sell common stock, we will consider various relevant factors,
including our evaluation of Datawatchs business, prospects and financial
condition, amounts and prices of available securities, other opportunities
available to us and general market and economic conditions.
As
we continue to evaluate Datawatch, our investment in the Company and whether to
purchase or sell common stock or otherwise pursue any plan or proposal of the
nature set forth in clauses (a) through (j) of Item 4 of Schedule
13D, we except to have discussions with Datawatchs management, its Board of
Directors, industry analysts, and potential acquirers, investors or strategic
partners regarding the Companys current plan of operation as well as certain
significant corporate actions, including, without limitation, the merger or
sale of the Company.
Except as set forth above,
the reporting persons have no current plans, proposals or arrangements that relate
to or would result in any of the actions specified in clauses (a) through
(j) of Item 4 of Schedule 13D, although the reporting persons do not rule out
the possibility of effecting or seeking to effect any such actions in the
future.
Item 5. Interest in Securities of
the Issuer.
Item
5 is hereby amended and restated in its entirety to read as follows:
(a) State the aggregate number
and percentage of the class of securities identified pursuant to Item 1 (which
may be based on the number of securities outstanding as contained in the most
recently available filing with the Commission by the issuer unless the filing
person has reason to believe such information is not current) beneficially
owned (identifying those shares which there is a right to acquire) by each
person named in Item 2. The above mentioned information should also be
furnished with respect to persons who, together with any of the persons named
in Item 2, comprise a group within the meaning of Section13(d)(3) of the
Act;
(b) For each person named in
response to paragraph (a), indicate the number of shares as to which there is
sole power to vote or to direct the vote, sole power to dispose or to direct
the disposition, or shared power to dispose or to direct the disposition.
Provide the applicable information required by Item 2 with respect to each
person with whom the power to vote or to direct the vote or to dispose or
direct the disposition is shared;
KVO
a.
Amount beneficially owned:
342,345 (1)(2)
b.
Percent of class: 5.76%
7
c.
Number of shares as to which
such person has:
i.
Sole power to vote or to
direct the vote: 342,345 (1)(2)
ii.
Shared power to vote or to
direct the vote: 0
iii.
Sole power to dispose or to
direct the disposition of: 342,345 (1)(2)
iv.
Shared power to dispose or
to direct the disposition of: 0
(1)
Includes
311,110 shares held in other private accounts over which KVO has both voting
and dispositive power pursuant to contract.
KVOs voting and dispositive power over these shares is revocable on or
after December 31, 2010.
(2)
Includes 31,235
shares held in a private account for the benefit of Robert B. Ashton, a
portfolio manager of KVO, over whose shares KVO has voting and dispositive
power during the term of Mr. Ashtons employment. Mr. Ashtons employment will cease on
September 1, 2010, at which time KVOs control over such shares will also
cease. Upon the cessation of Mr. Ashtons
employment, no further agreement, arrangement or understanding with respect to
the securities of the issuer remained between KVO and Mr. Ashton. Statements on Schedule 13D with respect to
securities of Datawatch Corporation reported by KVO on or after September 1,
2010 will not include Mr. Ashton as he will no longer constitute a member
of a group as defined by Section 13(d) and Rule 13(d)-5(b)(1) with
KVO or Mr. Oberting.
Kernan
V. Oberting
a.
Amount beneficially owned:
311,110 (3)
b.
Percent of class: 5.23%
c.
Number of shares as to which
such person has:
i.
Sole power to
vote or to direct the vote: 0
ii.
Shared power to
vote or to direct the vote: 311,110 (3)
iii.
Sole power to
dispose or to direct the disposition of: 0
iv.
Shared power to
dispose or to direct the disposition of: 311,110 (3)
(3)
Mr. Oberting
is the Managing Member of KVO. By reason
of the provisions of Rule 13d-3 of the Securities Exchange Act of 1934
(the Exchange Act), Mr. Oberting may be deemed to beneficially own all
of the shares that KVO is deemed to beneficially own. Mr. Oberting disclaims beneficial
ownership of any of the securities covered by this Schedule 13D.
Robert B. Ashton
a.
Amount beneficially owned:
31,235 (4)
b.
Percent of class: 0.53%
c.
Number of shares as to which
such person has:
i.
Sole power to
vote or to direct the vote: 0
8
ii.
Shared power to
vote or to direct the vote: 31,235 (4)
iii.
Sole power to
dispose or to direct the disposition of: 0
iv.
Shared power to
dispose or to direct the disposition of: 31,235 (4)
(4)
The group to
which this Schedule 13D originally related included Robert B. Ashton, over
whose shares KVO has voting and dispositive power during the term of Mr. Ashtons
employment. Mr. Ashtons employment
will cease on September 1, 2010, at which time KVOs control over such
shares will also cease. Upon the
cessation of Mr. Ashtons employment, no further agreement, arrangement or
understanding with respect to the securities of the issuer remained between KVO
and Mr. Ashton. Statements on Schedule
13D with respect to securities of Datawatch Corporation reported by KVO on or
after September 1, 2010 will not include Mr. Ashton as he will no
longer constitute a member of a group as defined by Section 13(d) and
Rule 13(d)-5(b)(1) with KVO or Mr. Oberting.
(c) Describe any transactions in the class of
securities reported on that were effected during the past sixty days or since
the most recent filing of Schedule 13D, whichever is less, by the persons named
in response to paragraph (a).
See
Appendix A for a list of transactions effected by KVO for the private accounts
during the past 60 days.
(d) If any other person is
known to have the right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of, such securities, a statement
to that effect should be included in response to this item and, if such
interest relates to more than five percent of the class, such person should be
identified. A listing of the shareholders of an investment company registered
under the Investment Company Act of 1940 or the beneficiaries of an employee
benefit plan, pension fund or endowment fund is not required.
Not applicable
(e) If applicable, state the
date on which the reporting person ceased to be the beneficial owner of more
than five percent of the class of securities.
Not applicable
Item 6. Contracts, Arrangements,
Understandings or Relationships with Respect to Securities of the Issuer.
Item
6 is hereby amended and restated in its entirety to read as follows:
Describe any contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 and
between such persons and any person with respect to any securities of the
issuer, including but not limited to transfer or voting of any of the
securities, finders fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies, naming the persons with whom such contracts,
arrangements, understandings or relationships have been entered into. Include
such information for any of the securities that are pledged or otherwise
subject to a contingency the occurrence of which would give another person
voting power or investment power over such securities except that disclosure of
standard default and similar provisions contained in loan agreements need not
be included.
Agreements
between the Reporting Persons
KVO
has both voting and dispositive power pursuant to contract over all shares held
in other private accounts. KVOs voting
and dispositive power over these shares is revocable on or after December 31,
2010.
The
group to which this Schedule 13D originally related included Robert B. Ashton,
over whose shares KVO has voting and dispositive power during the term of Mr. Ashtons
employment. Mr. Ashtons employment
9
will
cease on September 1, 2010, at which time KVOs control over such shares
will also cease. Upon the cessation of
Mr. Ashtons employment, no further contract, arrangement, understanding
or relationship with respect to the securities of the issuer will remain
between KVO or Mr. Oberting and Mr. Ashton. Statements on Schedule 13D with respect to
securities of Datawatch Corporation reported by KVO on or after September 1,
2010 will not include Mr. Ashton as he will no longer constitute a member
of a group as defined by Section 13(d) and Rule 13(d)-5(b)(1) with
KVO or Mr. Oberting.
Item 7. Material to be Filed as
Exhibits.
99.1
Joint Filing
Agreement
10
Appendix A
Transactions in Datawatch Corporation common stock by
KVO (1)
Transaction Date
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No. of Shares
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Purchase/Sale
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Price per Share
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Total Price
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May 11, 2010
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654
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Sale
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$
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2.2500
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$
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1,471.50
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May 11, 2010
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5,840
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Sale
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2.2500
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13,140.00
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May 11, 2010
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706
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Sale
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2.2500
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1,588.50
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May 12, 2010
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409
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Sale
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2.2500
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920.25
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May 12, 2010
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3,650
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Sale
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2.2500
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8,212.50
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May 12, 2010
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441
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Sale
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2.2500
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992.25
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May 14, 2010
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754
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Sale
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2.5004
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1,885.30
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May 14, 2010
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6,733
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Sale
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2.5004
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16,835.19
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May 14, 2010
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813
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Sale
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2.5004
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2,032.83
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May 17, 2010
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300
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Sale
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2.5167
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755.01
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May 18, 2010
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2,243
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Sale
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2.4900
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5,585.07
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May 18, 2010
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20,034
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Sale
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2.4900
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49,884.66
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May 18, 2010
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2,423
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Sale
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2.4900
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6,033.27
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May 19, 2010
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720
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Sale
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2.5025
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1,801.80
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May 20, 2010
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3,220
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Sale
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2.3445
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7,549.29
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May 20, 2010
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912
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Sale
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2.3000
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2,097.60
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May 20, 2010
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28,762
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Sale
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2.3445
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67,432.51
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May 20, 2010
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8,126
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Sale
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2.3000
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18,689.80
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May 20, 2010
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4,324
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Sale
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2.3445
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10,137.62
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May 20, 2010
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962
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Sale
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2.3000
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2,212.60
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May 21, 2010
|
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492
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Sale
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2.3207
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1,141.78
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May 21, 2010
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4,389
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Sale
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2.3207
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10,185.55
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May 21, 2010
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519
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Sale
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2.3207
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1,204.44
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(1)
KVO holds both voting and dispositive power pursuant to contract over 31,235
shares held in a private account on behalf of Robert Ashton, a portfolio
manager with KVO. KVOs voting and
dispositive power over these shares is revocable upon the termination of his employment
with KVO. Mr. Ashtons employment
with KVO will cease effective as of September 1, 2010, at which time KVOs
control over such shares will also cease.
Upon the cessation of Mr. Ashtons employment, no further contract,
arrangement, understanding or relationship with respect to the securities of
the issuer will remain between KVO or Mr. Oberting and Mr. Ashton. Statements on Schedule 13D with respect to
securities of Datawatch Corporation reported by KVO on or after September 1,
2010 will not include Mr. Ashton as he will no longer constitute a member
of a group as defined by Section 13(d) and Rule 13(d)-5(b)(1) with
KVO or Mr. Oberting.
11
SIGNATURES
After
reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
|
KVO CAPITAL MANAGEMENT, LLC
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|
|
|
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Date:
August 13, 2010
|
By:
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/s/
Kernan V. Oberting
|
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Name: Kernan V. Oberting
|
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Its: Managing Member
|
|
|
|
|
|
|
Date:
August 13, 2010
|
/s/
Kernan V. Oberting
|
|
Kernan V. Oberting
|
|
|
|
|
|
|
Date:
August 13, 2010
|
/s/
Robert B. Ashton
|
|
Robert B. Ashton
|
12
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