UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) August 28, 2013
Datawatch Corporation
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
000-19960
|
02-0405716
|
(Commission File Number)
|
(IRS Employer Identification No.)
|
Quorum Office Park
271 Mill Road
Chelmsford, Massachusetts
|
01824
|
(Address of Principal Executive Offices)
|
(Zip Code)
|
(978) 441-2200
(Registrant’s Telephone Number, Including Area Code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 2.01 Completion of Acquisition
or Disposition of Assets
As
previously disclosed, on June 14, 2013, Datawatch Corporation (“Datawatch”) entered into a Stock Purchase Agreement
(the “Purchase Agreement”) providing for the acquisition by Datawatch of all of the outstanding capital stock of Panopticon
Software AB, a Swedish company limited by shares (“Panopticon”), from the shareholders
of Panopticon (the “Sellers”) in an all-stock transaction (the “Share Purchase”), as well as the issuance
of equity awards for shares of Datawatch common stock in substitution for outstanding options for Panopticon stock, which Datawatch
will issue as restricted stock units (the “Consideration RSUs”). The transactions contemplated by the Purchase Agreement
were completed effective August 28, 2013.
Under
the Purchase Agreement, the maximum total number of shares of Datawatch common stock that Datawatch will issue in connection with
the Share Purchase equals 23.6% of Datawatch’s outstanding common stock (determined on an adjusted basis, as described below)
immediately following completion of the Share Purchase, or 2,169,941 shares (the “Consideration Shares”). Specifically,
the Consideration Shares equal 23.6% of 9,194,665 shares, representing the sum of:
| · | 6,572,334
shares of Datawatch
common stock outstanding
on the closing date; |
| · | 267,390
shares of Datawatch
common stock reserved
for issuance under
outstanding stock options
that are vested as
of the closing date;
|
| · | 185,000
shares of Datawatch
common stock that are
reserved for issuance
under an outstanding
common stock purchase
warrant; and |
| · | the
Consideration Shares.
|
Under
the Purchase Agreement, the Consideration Shares issued to the Sellers at closing were reduced by the following:
| · | 216,994
shares of Datawatch
common stock, equal
to 10% of the Consideration
Shares, were held back
at the closing and
will be retained by
Datawatch for fifteen
months as security
for the indemnification
obligations of the
Sellers under the Stock
Purchase Agreement;
|
| · | 86,231
shares of Datawatch
common stock were reserved
for issuance pursuant
to the Consideration
RSUs; and |
| · | 203,230
shares of Datawatch
common stock were issued
to certain management
personnel of Panopticon
in satisfaction of
change of control bonuses
to which they were
entitled to receive
from Panopticon upon
the closing of the
Share Purchase (the
“Transaction
Payments”). |
The
remaining 1,663,485 Consideration Shares were issued to the Sellers at the Closing.
A copy of the
news release announcing the completion of the acquisition is filed herewith as Exhibit 99.1 and incorporated by reference herein.
Item 3.02 Unregistered Sales
of Equity Securities
As
described in Item 2.01 of this report, on August 28, 2013 Datawatch issued 1,866,715 shares of its common stock to the Sellers
and recipients of the Transaction Payments in private transactions. The issuance of the shares of common stock in connection
with the Stock Purchase Agreement was not registered under the Securities Act of 1933, as amended (the “Securities Act”)
in reliance upon the exemptions from registration provided by Regulation S promulgated under the Securities Act, based on representations
from the applicable Sellers that they are not “U.S. persons” within the meaning of Rule 902 of Regulation S, and Section
4(2) of the Securities Act, as the transactions did not involve any public offering. The disclosure provided under
Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02 as if fully set forth herein.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
On
August 28, 2013, the Board of Directors (the “Board”) of the Company approved amendments to, and restated, the Company’s
By-Laws (the “By-Laws”), which changes were effective immediately upon approval.
The
principal changes to the By-Laws were made to reflect current market practice for publicly traded Delaware corporations, and include
the following:
| · | The
right to call a special
meeting of stockholders
has been limited to
the Board, and matters
that may be considered
at a special meeting
are limited to those
specified in the notice
of meeting published
by the Board; |
| · | Advance
notice provisions have
been added specifying
the required timing
and content of stockholder
proposals for business
at annual meetings
of stockholders; |
| · | Advance
notice provisions have
been added specifying
the required timing
and informational and
qualification requirements
relating to stockholder
nominees for election
as directors; |
| · | Stockholder
action by written consent
is regulated, including
by requiring advance
notice to the Company
prior to the commencement
of a written consent
and the opportunity
for the Company to
validate the results
of the written consent;
and |
| · | The
Court of Chancery of
the State of Delaware
is designated as the
sole and exclusive
forum in which stockholder
suits relating to the
Company’s internal
affairs can be brought
without the written
consent of the Company
to the selection of
an alternative forum. |
The
Board also made other non-material, technical and conforming amendments to the By-Laws.
The
above summary is qualified in its entirety by the full text of the By-Laws, a copy of which is attached hereto as Exhibit 3.1
and incorporated by reference.
Item
5.07 Submission of Matters to a Vote of Security Holders
A
Special Meeting of Stockholders of Datawatch was held on August 28, 2013, at which the Datawatch stockholders approved the issuance
of the Consideration Shares as consideration for the purchase of 100% of the outstanding capital stock of Panopticon. A total of 4,022,291 shares, or 61.57% of the outstanding shares, of Common Stock entitled to vote were represented at the Special Meeting.
Votes were cast
as follows:
Total
Votes For |
Total
Votes Against |
Abstentions |
Broker
Non-Votes |
3,981,534 |
36,169 |
1,478 |
3,110 |
Item 9.01 Financial
Statements and Exhibits
(a) Financial Statements of Businesses
Acquired.
The
financial statements required by Item 9.01(a) of Form 8-K were previously filed as Annex B to the Definitive Proxy Statement on
Schedule 14A filed with the Securities and Exchange Commission on August 5, 2013 and are incorporated herein by reference in accordance
with Form 8-K General Instruction B.3.
(b) Pro Forma Financial Information.
The
pro forma financial information required by Item 9.01(b) of Form 8-K was previously reported beginning on page 35 of the Definitive
Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on August 5, 2013 and is incorporated herein
by reference in accordance with Form 8-K General Instruction B.3.
(d) Exhibits
The following
Exhibits are filed as part of this report:
Exhibit No. Description
| 3.1 | Amended and Restated Bylaws of Datawatch
Corporation adopted August 28, 2013. |
| 23.1 | Consent of PricewaterhouseCoopers
AB. |
| 99.1 | Press release of Datawatch Corporation
dated August 28, 2013. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
DATAWATCH CORPORATION
By: /s/ James Eliason
Name: James Eliason
Title: Chief Financial Officer
Date:
August 28, 2013
EXHIBIT INDEX
Exhibit No. Description
| 3.1 | Amended and Restated Bylaws of Datawatch
Corporation adopted August 28, 2013. |
| 23.1 | Consent of PricewaterhouseCoopers
AB. |
| 99.1 | Press release of Datawatch Corporation
dated August 28, 2013. |
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