AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 2003
REGISTRATION NO. 333-102197
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PAR TECHNOLOGY CORPORATION
(Exact name of Registrant as specified in its charter)
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DELAWARE 16-1434688
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
PAR TECHNOLOGY PARK
8383 SENECA TURNPIKE
NEW HARTFORD, NY 13413-4991
(315) 738-0600
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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JOHN W. SAMMON, JR.
CHAIRMAN OF THE BOARD, PRESIDENT AND DIRECTOR
PAR TECHNOLOGY CORPORATION
PAR TECHNOLOGY PARK
8383 SENECA TURNPIKE
NEW HARTFORD, NY 13413-4991
(315) 738-0600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE AGENT
FOR SERVICE, SHOULD BE SENT TO:
KATHY A. FIELDS, ESQ.
TIMOTHY C. MAGUIRE, ESQ.
TESTA, HURWITZ & THIBEAULT, LLP
125 HIGH STREET
BOSTON, MASSACHUSETTS 02110
TELEPHONE: (617) 248-7000
FACSIMILE: (617) 248-7100
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest 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]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES REGISTERED REGISTERED OFFERING PRICE SHARE(1) AGGREGATE OFFERING PRICE(1) REGISTRATION FEE(2)
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Common Stock, $0.02 par value per share (2) 508,019 $ 7.03 $ 3,571,373.57 $ 328.57 (3)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
(2) Pursuant to Rule 457(c) under the Securities Act of 1933, as amended, the
registration fee has been calculated based upon the average of the high and low
prices per share of the common stock of PAR Technology Corporation on the New
York Stock Exchange on December 19, 2002.
(3) Registration fee was previously paid in connection with the initial filing
of the S-3 registration statement.
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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell securities, and it is not soliciting offers to buy theses securities in
any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST 11, 2003
PROSPECTUS
PAR TECHNOLOGY CORPORATION
508,019 SHARES
COMMON STOCK
The selling stockholders identified in this prospectus are offering for
sale up to 508,019 shares of our common stock. We will not receive any proceeds
from the sale of these shares by the selling stockholders.
The selling stockholders acquired the offered shares directly from PAR
Technology Corporation and J. Whitney Haney, a stockholder of the Company, in a
private placement that closed on December 3, 2002. The selling stockholders, or
their pledgees, donees, transferees or other successors-in-interest, may offer
the shares from time to time through public or private transactions at
prevailing market prices, at prices related to prevailing market prices or at
privately negotiated prices.
Our common stock is traded on the New York Stock Exchange under the
symbol "PTC." On August 7, 2003, the closing sale price of our common stock on
the New York Stock Exchange was $6.89 per share.
INVESTING IN OUR COMMON STOCK INVOLVES RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 2.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is August 11, 2003.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS.
WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM
THAT CONTAINED IN THIS PROSPECTUS. THE INFORMATION CONTAINED IN THIS PROSPECTUS
IS ACCURATE ONLY AS OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF
DELIVERY OF THIS PROSPECTUS OR OF ANY SALE OF THE COMMON STOCK.
TABLE OF CONTENTS
PAGE
PAR Technology Corporation....................................................................... 1
Risk Factors..................................................................................... 2
Special Note Regarding Forward Looking Statements................................................ 4
Use of Proceeds.................................................................................. 4
Selling Stockholders............................................................................. 5
Plan of Distribution............................................................................. 7
Legal Matters.................................................................................... 9
Experts.......................................................................................... 9
Incorporation of Certain Information by Reference................................................ 9
Available Information............................................................................ 10
PAR TECHNOLOGY CORPORATION
PAR Technology Corporation ("PAR" or the "Company") is a leading
provider of hardware platforms, software applications and professional services
to businesses in the retail, hospitality and quick-service-restaurant
industries. As the world's largest supplier of Point-of-Sale cash register and
sales data collection systems in the quick-service-restaurant market, with over
30,000 systems installed in 95 countries, the beneficial attributes of our
hardware platforms are well recognized. Our software applications assist in the
operation of hospitality and quick-service-restaurant businesses by managing
data from end-to-end and improving profitability through more efficient
operations. Our professional services mission is to assist businesses in
achieving the full potential of their Point-of-Sale cash register and data
collection systems. To that end, we provide services ranging from implementation
of and training for such systems to project management of the implementation of
a business' technology investment.
PAR is confident to claim the title "leading provider" of professional
services and enterprise business intelligence applications due to our long-term
relationship with the restaurant industry's two largest corporations -
McDonald's and Yum! Brands. McDonald's has over 30,000 restaurants in 121
countries and PAR has been a selected provider of Point-of-Sale systems and
lifecycle support services to McDonald's since 1980. Yum! Brands has been a PAR
customer since 1983, and PAR has an install base within Yum's three major
concepts: KFC, Pizza Hut and Taco Bell. Yum has nearly 31,000 units globally and
PAR is the sole approved Point-of-Sale supplier to Taco Bell. PAR is also the
Point-of-Sale vendor of choice to Boston Market, Chic-fil-A, CKE Restaurants
(Hardees, Carl Jr.'s, etc.), Carnival Cruise Lines, Loews Cineplex and large
franchisees of each of the foregoing brands.
PAR is also a leading government contractor, developing advanced
prototype and operational systems for the Department of Defense and other
governmental agencies. Additionally, PAR provides information technology and
communications support services to the U.S. Navy and U.S. Air Force. PAR focuses
its computer-based system design services on providing high quality technical
products and services, ranging from experimental studies to advanced operational
systems, within a variety of areas of research, including radar, image and
signal processing, logistics management systems, and geospatial services and
products. With more than 25 years in this business, PAR's government engineering
service segment provides management and engineering services that span
disciplines ranging from advanced research and development to facilities
operation and management. In addition, through government-sponsored research and
development, PAR has developed technologies with relevant commercial uses. The
Company's Point-of-Sale technology was derived from research and development
regarding micro-chip processing technology, sponsored by the Department of
Defense.
Our common stock is traded on the New York Stock Exchange under the
symbol "PTC." Our corporate headquarters offices are located at PAR Technology
Park, 8383 Seneca Turnpike, New Hartford, New York 13413-4991; telephone number
(315) 738-0600. Our website address is http://www.partech.com. Information
contained on our website is not part of this prospectus.
The terms "we," "our," and "us" refer to PAR Technology Corporation and
its wholly-owned subsidiaries, unless the context suggests otherwise.
1
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW BEFORE MAKING AN
INVESTMENT DECISION. THE RISKS AND UNCERTAINTIES DESCRIBED BELOW ARE NOT THE
ONLY ONES FACING OUR COMPANY. ADDITIONAL RISKS MAY ALSO IMPAIR OUR BUSINESS
OPERATIONS. IN EVALUATING OUR BUSINESS AND BEFORE YOU DECIDE TO BUY OUR COMMON
STOCK, YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING RISKS, IN ADDITION TO THE
OTHER INFORMATION CONTAINED IN THIS PROSPECTUS AND THE OTHER DOCUMENTS
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS. IF ANY OF THE FOLLOWING RISKS
ACTUALLY OCCUR, OUR BUSINESS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS COULD
BE MATERIALLY ADVERSELY AFFECTED. IN SUCH CASE, THE TRADING PRICE OF OUR COMMON
STOCK COULD DECLINE AND YOU COULD LOSE ALL OR PART OF YOUR INVESTMENT.
A CHANGE IN THE RELATIONSHIP WITH ANY ONE OF OUR MAJOR CUSTOMERS WOULD
MATERIALLY ADVERSELY AFFECT OUR BUSINESS.
A small number of customers has historically accounted for a majority
of our net revenues in any given fiscal period. For the fiscal years ended
December 31, 2002, 2001 and 2000, aggregate sales to our top two restaurant
segment customers, McDonald's and Yum! Brands, amounted to 51%, 51% and 56%,
respectively, of net revenues. No customer is obligated to make any minimum
level of future purchases from us or to provide us with binding forecasts of
product purchases for any future period. In addition, major customers may elect
to delay or otherwise change the timing of orders in a manner that could
adversely effect quarterly and annual results of operations. There can be no
assurance that our current customers will continue to place orders with us, or
that we will be able to obtain orders from new customers.
AN INABILITY TO PRODUCE NEW PRODUCTS THAT KEEP PACE WITH TECHNOLOGICAL
DEVELOPMENTS AND CHANGING MARKET CONDITIONS COULD RESULT IN A LOSS OF MARKET
SHARE.
The products we sell are subject to rapid and continual technological
change. The products that are available from our competitors have increasingly
offered a wider range of features and capabilities. We believe that in order to
compete effectively we must provide compatible systems incorporating new
technologies at competitive prices. There can be no assurance that we will be
able to continue funding research and development at levels sufficient to
enhance our current product offerings, or will be able to develop and introduce
on a timely basis new products that keep pace with technological developments
and emerging industry standards and address the evolving needs of customers.
There can also be no assurance that we will not experience difficulties that
will result in delaying or preventing the successful development, introduction
and marketing of new products in our existing markets, or that our new products
and product enhancements will adequately meet the requirements of the
marketplace or achieve any significant degree of market acceptance. Likewise,
there can be no assurance as to the acceptance of our products in new markets,
nor can there be any assurance as to the success of our penetration of these
markets, or to the revenue or profit margins with respect to these products. If
any of our competitors were to introduce superior software products at
competitive prices, or if our software products no longer met the needs of the
marketplace due to technological developments and emerging industry standards,
our software products may no longer retain any significant market share. If this
were to occur, we could be required to record a charge against capitalized
software costs, which amounts to $2.1 million as of December 31, 2002.
WE DERIVE A PORTION OF OUR REVENUE FROM GOVERNMENT CONTRACTS, WHICH CONTAIN
PROVISIONS UNIQUE TO PUBLIC SECTOR CUSTOMERS.
For the fiscal years ended December 31, 2002, 2001 and 2000, we derived
28%, 27% and 25%,
2
respectively, of our net revenues from contracts to provide technical products
and services to United States government agencies and defense contractors.
Contracts with United States government agencies typically provide that such
contracts are terminable at the convenience of the government. If the government
terminated a contract on this basis, we would be entitled to receive payment for
our allowable costs and, in general, a proportionate share of our fee or profit
for work actually performed. Most U.S. government contracts are also subject to
modification or termination in the event of changes in funding. As such, we may
perform work prior to formal authorization, or the contract prices may be
adjusted for increased work scope or change orders. Termination or modification
of a substantial number of our U.S. government contracts could have a material
adverse effect on our business, financial condition and results of operations.
The Company does not anticipate any impact due to the current world crisis on
our current contracts.
We perform work for the United States government pursuant to firm
fixed-price, cost-plus fixed fee, time-and-material, and incentive-type prime
contracts and subcontracts. The majority of our government contracts are either
firm fixed-price or cost-plus fixed fee contracts. Approximately 54% of the
revenue that we derived from government contracts for fiscal year 2002 came from
firm fixed-price or time-and-material contracts. The balance of the revenue that
we derived from government contracts in 2002 primarily came from cost-plus fixed
fee contracts. Most of our contracts are for one-year to five-year terms, and
all of the revenue that we derive from government contracts is derived from
funded contracts.
WE FACE EXTENSIVE COMPETITION IN THE MARKETS IN WHICH WE OPERATE, AND OUR
FAILURE TO COMPETE EFFECTIVELY COULD RESULT IN PRICE REDUCTIONS AND DECREASED
DEMAND FOR OUR PRODUCTS AND SERVICES.
There are currently five major suppliers who offer restaurant
management systems similar to ours. Some of these competitors are larger than we
are and have access to substantially greater financial and other resources than
we do, and consequently may be able to obtain more favorable terms than we can
for components and subassemblies incorporated into their restaurant technology
products. The rapid rate of technological change in the restaurant market makes
it likely that we will face competition from new products designed by companies
not currently competing with us. Such products may have features not currently
available on our restaurant products. We believe that our competitive ability
depends on our total solution offering, our product development and systems
integration capability, our direct sales force and our customer service
organization. There is no assurance, however, that we will be able to compete
effectively in the restaurant technology market in the future.
Our government contracting business has been focused on niche
offerings, primarily signal and image processing and engineering services. Many
of our competitors are, or are subsidiaries of, companies such as
Lockheed-Martin, Raytheon, Northrop-Grumman (which includes Litton-PRC-TASC),
BAE, Boeing and SAIC. These companies are larger and have substantially greater
financial resources than we do. We also compete with smaller companies that
target particular segments of the government market. These companies may be
better positioned to obtain contracts through competitive proposals.
Consequently, there are no assurances that we will continue to win government
contracts as a prime contractor or subcontractor.
WE MAY NOT BE ABLE TO MEET THE UNIQUE OPERATIONAL, LEGAL AND FINANCIAL
CHALLENGES THAT RELATE TO OUR INTERNATIONAL OPERATIONS, WHICH MAY LIMIT THE
GROWTH OF OUR BUSINESS.
For the years ended December 31, 2002, 2001 and 2000, our net revenues
from sales outside the United States were 11%, 14% and 19%, respectively, of the
Company's net revenues. We anticipate that international sales will continue to
account for a significant portion of sales. We intend to continue to
3
expand our operations outside the United States and to enter additional
international markets, which will require significant management attention and
financial resources. Our operating results are subject to the risks inherent in
international sales, including, but not limited to, regulatory requirements,
political and economic changes and disruptions, geopolitical disputes and war,
transportation delays, difficulties in staffing and managing foreign sales
operations, and potentially adverse tax consequences. In addition, fluctuations
in exchange rates may render our products less competitive relative to local
product offerings, or could result in foreign exchange losses, depending upon
the currency in which we sell our products. There can be no assurance that these
factors will not have a material adverse effect on our future international
sales and, consequently, on our operating results. In 2002, less than 1% of the
Company's revenues was from customers in the Middle East. Therefore, the current
instability in that region is not expected to have a material impact on the
results of operations in 2003.
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus contains forward-looking statements that are made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. Investors are cautioned that all forward-looking statements
involve risks and uncertainties, including without limitation, further delays in
new product introduction, risks in technology development and commercialization,
risks in product development and market acceptance of and demand for our
products, risks associated with foreign sales, risks associated with high
customer concentration, risks associated with government contracts, and other
risks detailed in our filings with the Securities and Exchange Commission. See
"Risk Factors."
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of our common
stock by the selling stockholders. See "Selling Stockholders" and "Plan of
Distribution." The principal purpose of this offering is to effect an orderly
disposition of the shares of our common stock being offered and sold from time
to time by the selling stockholders.
4
SELLING STOCKHOLDERS
The following table sets forth, as of the date of this prospectus, the
names of the selling stockholders, the number of shares of common stock that the
selling stockholders own as of such date, the number of shares of common stock
owned by the selling stockholders that may be offered for sale from time to time
by this prospectus, and the number of shares of common stock to be held by the
selling stockholders assuming the sale of all of the shares offered hereby.
There can be no assurance that the selling stockholders will sell all or any of
the shares registered hereunder as the stockholders may sell all or part of
their shares pursuant to this prospectus.
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO OFFERING SHARES OWNED AFTER OFFERING
----------------------- OFFERED --------------------
PURSUANT TO
SELLING STOCKHOLDER NUMBER (1) PERCENT (2) THIS PROSPECTUS NUMBER (1) PERCENT (2)
------------------- ---------- ----------- --------------- ---------- -----------
E*Capital Corporation (3)(4) 339,449 4.02% 269,849 69,600 *
Edward W. Wedbush (3)(5) 164,770 1.95% 113,270 51,500 *
Gary S. Siperstein and Mynde S. 201,000 2.38% 53,000 148,000 1.75%
Siperstein (6)
Gary S. Siperstein (6)(7) 420,200 4.98% 0 420,200 4.98%
S. Harry Siperstein 45,000 * 22,000 23,000 *
Charles H. Tanner(8) 37,000 * 25,000 12,000 *
John P. Feighner and Anne C. 10,000 * 4,000 6,000 *
Feighner Trustees - Feighner
Family Trust
Gregory W. Davis 3,000 * 3,000 0 *
Thomas Flanagan 3,000 * 3,000 0 *
Raymond Wedbush 3,000 * 3,000 0 *
Triangle Education Foundation 3,000 * 3,000 0 *
Maria Del Carmen Rivera 1,500 * 1,500 0 *
Ray T. Sparling 1,500 * 1,500 0 *
Lisa Marie 1,500 * 1,500 0 *
Robert P. Meinberg 1,500 * 1,500 0 *
Jennifer McJunkin 1,000 * 1,000 0 *
Joan Marie Wedbush 1,000 * 1,000 0 *
Vardui Gezalyan 500 * 500 0 *
5
* Represents less than 1% of the outstanding shares.
(1) The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities and Exchange Act of 1934, as
amended, and the information is not necessarily indicative of beneficial
ownership for any other purpose. Under Rule 13d-3, beneficial ownership
includes any shares as to which the individual has sole or shared voting
power or investment power and also any shares which the individual has the
right to acquire within 60 days of the date of this prospectus through the
exercise of any stock option or other right.
(2) Percentages are calculated based on 8,444,025 shares of common stock
outstanding as of July 31, 2003.
(3) E*Capital Corporation and Edward W. Wedbush have reported their holdings as
a group on a Report of Beneficial Ownership on Schedule 13G. E*Capital
Corporation is the parent company of Wedbush Morgan Securities, Inc. Mr.
Wedbush is the chairman of E*Capital Corporation and owns a majority of its
outstanding shares. Accordingly, Mr. Wedbush may be deemed the beneficial
owner of shares owned by E*Capital Corporation. However, Mr. Wedbush has
disclaimed beneficial ownership of the shares held by E*Capital
Corporation.
(4) Includes 14,000 shares held by Wedbush Morgan Securities, Inc., 12,000
shares held by Wedbush Capital Corp., and 12,000 shares held by Wedbush
Leasing, Inc.
(5) Includes 78,670 shares held by Edward W. Wedbush as trustee for the Wedbush
Morgan Securities, Inc. Employee Profit Sharing Retirement Plan.
(6) Excludes 3,500 shares held by Gary S. Siperstein as custodian for his minor
children or in charitable foundation controlled by his family, as to which
Gary S. Siperstein and Mynde S. Siperstein disclaim beneficial ownership.
(7) Shares held by clients of Eliot Rose Asset Management, LLC, an investment
advisory firm registered under section 203 of the Investment Advisers Act
of 1940 and of which Mr. Siperstein in the principal. As such, Mr.
Siperstein may be deemed to be the beneficial owner of these shares by
reason of his shared investment power. Mr. Siperstein disclaims beneficial
ownership of all of these shares.
(8) Includes 2,500 shares held by Estelle D. Tanner, who is the wife of Charles
H. Tanner.
-------------------------------------
On December 3, 2002, we sold, pursuant to Rule 506 of Regulation D
under the Securities Act of 1933, as amended, an aggregate of 383,019 shares of
our common stock and J. Whitney Haney sold, pursuant to Section 4(1) of the
Securities Act of 1933, as amended, for his personal account 125,000 shares of
our common stock to the selling stockholders at $5.30 per share for an aggregate
consideration of $2,692,500.70 in a private placement. These sales were
consummated in connection with certain stock purchase agreements entered into by
each of the selling stockholders (or their nominee) and us, which agreements
contained terms typical to transactions of that nature, including
representations made by the Company as to due authorization, valid issuance,
non-contravention, capitalization and litigation. We are filing this
registration statement to register, and the selling stockholders are offering,
for public sale these 508,019 shares of our common stock currently held by the
selling stockholders.
The selling stockholders have represented to us in their respective
stock purchase agreements or in letters of representation provided to the
Company by the investors that they acquired the shares as principal for their
own accounts, for investment and not with a view to, or for resale in connection
with, any distribution or public offering of the shares in violation of the
Securities Act of 1933, as amended. In recognition of the fact, however, that
the selling stockholders may want to be able to sell the shares when, and if,
they consider it appropriate, in connection with the stock purchase agreements
by and among the selling stockholders and us, we agreed to file this
registration statement with the Securities and Exchange Commission to effect the
registration of the resale of the 508,019 shares of common stock under the
Securities Act and to use our reasonable best efforts to keep this registration
statement effective until the earliest of (i) the date on which all of the
shares have been sold, (ii) the first date on which all of the then remaining
unsold shares are able to be sold within a 90-day period pursuant to Rule 144 of
the Securities Act, or (iii) December 3, 2004. In connection with the stock
purchase agreements, we entered into a Registration Rights Agreement to which
each of the selling stockholders (or their nominees) became a party.
6
This agreement contains terms and provisions typical of agreements of its
nature, including granting the selling stockholders the right to require us to
file additional Registration Statements on Form S-3 and the right to require
that their shares be covered by other Registration Statements that we may
subsequently file.
Except as noted above and based on representations by the selling
stockholders, to the best of our knowledge, no selling stockholder had a
material relationship with us or any of our affiliates within the three-year
period ending on the date of this prospectus.
PLAN OF DISTRIBUTION
The shares of our common stock covered by this prospectus may be
offered and sold from time to time by the selling stockholders for their own
account. The term "selling stockholders" includes permitted pledgees, donees,
transferees, designees, beneficiaries, distributees or other
successors-in-interest selling shares received after the date of this prospectus
from a selling stockholder. In addition, certain of the selling stockholders are
corporations or partnerships that may, in the future, distribute their shares to
their shareholders or partners, respectively. Those shares may later be sold by
those shareholders or partners.
The selling stockholders will act independently of us in making
decisions with respect to the timing, manner and size of each sale. Such sales
may be made on the New York Stock Exchange, or other exchanges or in the
over-the-counter market or otherwise, at prices and under terms then prevailing
or at prices related to the then-current market price or in negotiated
transactions. The selling stockholders may sell their shares by one or more of,
or a combination of, the following methods:
- purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers, which may include long or short
sales effected after the filing of the registration statement
of which this prospectus is a part;
- cross trades or block trades in which the broker-dealer so
engaged will attempt to sell the shares as agent but may
position and resell a portion of the block as principal to
facilitate the transaction;
- in privately negotiated transactions;
- in options transactions;
- in other ways not involving market makers or established
trading markets, including direct sales to purchasers or sales
affected through agents;
- any combination of the foregoing practices; or
- any other lawful method.
In addition, any shares that qualify for sale pursuant to Rule 144 of
the Securities Act of 1933, as amended, may be sold under Rule 144 rather than
pursuant to this prospectus. No selling stockholder has entered into any
agreement with a prospective underwriter and there is no assurance that any such
agreement will be entered into.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. In connection
with distributions of the shares or otherwise, the selling stockholders may
enter into hedging transactions with broker-dealers or other financial
institutions. In connection with such transactions, broker-dealers or other
financial institutions may engage in short sales
7
of the common stock in the course of hedging the positions they assume with
selling stockholders. The selling stockholders may also sell the common stock
short and redeliver the shares to close out such short positions. The selling
stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction). The selling stockholders may also pledge shares to a broker-dealer
or other financial institution, and, upon a default, such broker-dealer or other
financial institution may effect sales of the pledged shares pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
In effecting sales, broker-dealers or agents engaged by the selling
stockholders may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
stockholders in amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling
stockholders and any broker-dealers who execute sales for the selling
stockholders may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended, in connection with such sales. Any profits
realized by the selling stockholders and compensation of any broker-dealer may
be deemed to be underwriting discounts and commissions.
In order to comply with the securities laws of certain jurisdictions,
the shares offered by this prospectus may need to be offered or sold in such
jurisdictions only through registered or licensed brokers or dealers.
Under applicable rules and regulations under the Securities Exchange
Act of 1934, any person engaged in a distribution of the shares of common stock
covered by this prospectus may be limited in their ability to engage in market
activities with respect to such shares. The selling stockholders, for example,
will be subject to applicable provisions of the Securities Exchange Act of 1934
and the rules and regulations under it, including, without limitation Regulation
M, which provisions may restrict certain activities of the selling stockholders
and limit the timing of purchases and sales of any shares of common stock by the
selling stockholders. Furthermore, under Regulation M, persons engaged in a
distribution of securities are prohibited from simultaneously engaging in market
making and certain other activities with respect to such securities for a
specified period of time prior to the commencement of such distributions,
subject to specified exceptions or exemptions. The foregoing may affect the
marketability of the shares offered by this prospectus.
We, together with J. Whitney Haney, who sold shares to one of the
selling stockholders in connection with our private placement of our shares,
have agreed to pay the fees and expenses incurred in effecting the registration
of the shares covered by this prospectus, including, without limitation, all
registration and filing fees and fees and expenses of our counsel and our
accountants. The selling stockholders will pay any underwriting discounts and
commissions and expenses incurred by the selling stockholders for brokerage,
accounting, tax or legal services or any other expenses incurred by the selling
stockholders in disposing of the shares. We will not receive any of the proceeds
from the sale of our common stock by the selling stockholders.
We have agreed to indemnify the selling stockholders against certain
liabilities, including certain liabilities under the Securities Act of 1933, as
amended.
We have agreed to use our best efforts to maintain the effectiveness of
this registration statement of which this prospectus forms a part until the
earliest of (i) the date on which all of the shares have been sold, (ii) the
date on which all of the then remaining unsold shares are able to be sold within
a 90-day
8
period pursuant to Rule 144 of the Securities Act of 1933, as amended, or (iii)
December 3, 2004. We may suspend the selling stockholders' rights to resell
shares under this prospectus.
Our common stock is traded on the New York Stock Exchange under the
symbol "PTC." The Transfer Agent and Registrar for our shares of common stock is
Registrar and Transfer Company, 10 Commerce Drive, Cranford, New Jersey 07016.
LEGAL MATTERS
The validity of the shares of our common stock offered hereby will be
passed upon for us by Testa, Hurwitz & Thibeault, LLP, Boston, Massachusetts.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K for the year ended December 31, 2002 have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and information that we file later with the Securities and Exchange
Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the Securities and Exchange Commission under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the sale of
all the shares of common stock covered by this prospectus:
1. Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2002;
2. Our Periodic Report on Form 10-Q for the fiscal quarter ended
March 31, 2003;
3. Our Periodic Report on Form 10-Q for the fiscal quarter ended
June 30, 2003;
4. Our Current Report on Form 8-K, filed on April 18, 2003;
5. Our Current Report on Form 8-K, filed on May 6, 2003;
6. Our Current Report on Form 8-K, filed on July 23, 2003; and
7. The description of our common stock contained in the section
entitled "Description of New PAR Capital Stock" contained in
Exhibit 28 to our Registration Statement on Form 8-B, filed
with the Securities and Exchange Commission on August 23,
1993, pursuant to Section 12(g) of the Securities Exchange Act
of 1934.
We will provide, without charge, a copy of any and all of the
information that is incorporated by reference in this prospectus, not including
exhibits to the information unless those exhibits are
9
specifically incorporated by reference into this prospectus, to any person,
including any beneficial owner, to whom a prospectus is delivered, upon written
or oral request. Requests for copies of this information should be directed to
Investor Relations, PAR Technology Corporation, PAR Technology Park, 8383 Seneca
Turnpike, New Hartford, NY 13413-4991, telephone number (315) 738-0600. Our
website is http://www.partech.com. Information contained on our website is not a
part of this prospectus.
This prospectus is part of a registration statement we filed with the
Securities and Exchange Commission. You should rely only on the information
incorporated by reference, provided in this prospectus or any supplement or to
which we have referred you. We have not authorized anyone to provide you with
different information. You should not assume that the information in this
prospectus or any supplement is accurate as of any date other than the date on
the front of those documents. However, you should realize that our affairs may
have changed since the date of this prospectus. This prospectus will not reflect
such changes. You should not consider this prospectus to be an offer or
solicitation relating to the securities in any jurisdiction in which such an
offer or solicitation relating to the securities is not authorized. Furthermore,
you should not consider this prospectus to be an offer or solicitation relating
to the securities if the person making the offer or solicitation is not
qualified to do so, or if it is unlawful for you to receive such an offer or
solicitation.
AVAILABLE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any reports, statements or other information we file at the Securities and
Exchange Commission's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the Securities and Exchange Commission at
1-800-SEC-0330 for further information on the Public Reference Room. In
addition, the Securities and Exchange Commission maintains a web site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Securities and Exchange Commission.
10
================================================================================
508,019 SHARES
PAR TECHNOLOGY CORPORATION
COMMON STOCK
-----------------------
PROSPECTUS
August 11, 2003
------------------------
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table provides an estimate (other than with respect to
the Registration Fee) of the expenses that we expect to incur in connection with
the sale and distribution of the securities being registered, other than
underwriting discounts and commissions:
Registration Fee -- Securities and Exchange Commission ......................................... $ 328.57 *
Accounting Fees and Expenses ................................................................... $ 11,000.00
Legal Fees and Expenses ........................................................................ $ 20,000.00
Miscellaneous................................................................................... $ 5,671.43
------------
TOTAL.................................................................................. $ 37,000.00
============
* Registration fee was previously paid in connection with the initial filing of
the S-3 registration statement.
We, along with J. Whitney Haney, who sold shares to one of the selling
stockholders in connection with the private placement of our shares, will bear
all expenses shown above. As negotiated in a side letter agreement, Mr. Haney
will pay a pro rata portion of some of the expenses shown above, calculated
based on the aggregate gross proceeds that we and Mr. Haney receive from the
sale of the shares. The expenses covered by this arrangement include legal fees
in connection with the execution and performance of the stock purchase
agreements and the filing fees in connection with the filing of the registration
statement. The selling stockholders will bear all underwriting discounts and
selling commissions and stock transfer fees and taxes applicable to the sale of
the shares sold pursuant to this prospectus.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Certificate of Incorporation, as amended, provides that we shall,
to the fullest extent permitted under Delaware General Corporation Law,
indemnify all of our directors, except in certain circumstances involving
wrongful acts, such as (a) for any breach of the director's duty of loyalty to
us or its stockholders, (b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (c) under Section
174 of the Delaware General Corporation Law, or (d) for any transaction from
which the director derived an improper personal benefit.
In addition, our By-Laws require us to indemnify any of our directors,
officers, employees or agents against all expenses and liabilities reasonably
incurred by him or her in connection with any legal action in which such person
is involved by reason of his or her position with us unless it is determined
that he or she did not act in good faith in the reasonable belief that his or
her action was in our best interest. Such indemnification shall include payment
by us of expenses incurred in defending a civil or criminal action or proceeding
in advance of the final disposition of such action or proceeding, upon our
receipt of the undertaking of the person indemnified to repay such payment if
such person shall ultimately be determined not to be entitled to such
indemnification. Our By-Laws require us to maintain, and we do so maintain, an
insurance policy insuring our directors and officers against liabilities.
1
ITEM 16. EXHIBITS.
The following exhibits, required by Item 601 of Regulation S-K, are
filed as a part of this Registration Statement. Exhibit numbers, where
applicable, in the left column correspond to those of Item 601 of Regulation
S-K.
4.1 Certificate of Incorporation, as amended, of the Company (filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-2 (No.
333-04077) and incorporated herein by reference).
4.2 Certificate of Amendment to the Certificate of Incorporation of the
Company (filed as Exhibit 3.2 to the Company's Registration Statement
on Form S-2 (No. 333-04077) and incorporated herein by reference).
4.3 By-laws of the Registrant, as amended (filed as Exhibit 3.3 to the
Company's Registration Statement on Form S-2 (No. 333-04077) and
incorporated herein by reference).
4.4 Specimen certificate for shares of the Company's Common Stock (as filed
as Exhibit 4 to the Company's Registration Statement on Form S-2 (No.
333-04077) and incorporated herein by reference).
4.5 Form of Stock Purchase Agreement by and among the Company, J. Whitney
Haney and each of the Investors listed on Schedule I thereto
(previously filed).
4.6 Registration Rights Agreement, dated as of December 3, 2002, by and
among the Company and the parties named therein (previously filed).
5.1 Legal Opinion of Testa, Hurwitz & Thibeault, LLP (to be filed pursuant
to an amendment hereto).
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
(to be filed pursuant to an amendment hereto).
24.1 Power of Attorney (previously filed).
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 of 1933;
2
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this 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 Commission 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; and
(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 this registration statement.
provided, however, that paragraphs (1)(i) and 1(ii) do not apply if 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 Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 foregoing provisions 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 of 1933, as amended, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer,
or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
3
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
Amendment No. 1 to the Registration Statement on Form S-3 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New
Hartford, State of New York, on August 11, 2003.
PAR TECHNOLOGY CORPORATION
By: /s/ Ronald J. Casciano
------------------------------
Ronald J. Casciano
Vice President, Chief Financial
Officer and Treasurer
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement on Form S-3 has been signed
below by the following persons on behalf of the Registrant and in the capacities
and on the dates indicated.
NAME CAPACITY DATE
---- -------- ----
* Chairman of the Board, President and August 11, 2003
___________________________________ Director (Principal Executive Officer and
John W. Sammon, Jr. Director)
*_________________________________ Executive Vice President and Director August 11, 2003
Charles A. Constantino
*_________________________________ Director August 11, 2003
James A. Simms
/s/ Ronald J. Casciano Vice President, Chief Financial Officer, August 11, 2003
------------------------------- and Treasurer (Principal Financial
Ronald J. Casciano Officer and Principal Accounting Officer)
* By: /s/ Ronald J. Casciano
---------------------
Ronald J. Casciano
Attorney-in-Fact
4
INDEX TO EXHIBITS
4.1 Certificate of Incorporation, as amended, of the Company (filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-2
(No. 333-04077) and incorporated herein by reference).
4.2 Certificate of Amendment to the Certificate of Incorporation of
the Company (filed as Exhibit 3.2 to the Company's Registration
Statement on Form S-2 (No. 333-04077) and incorporated herein by
reference).
4.3 By-laws of the Registrant, as amended (filed as Exhibit 3.3 to the
Company's Registration Statement on Form S-2 (No. 333-04077) and
incorporated herein by reference).
4.4 Specimen certificate for shares of the Company's Common Stock (as
filed as Exhibit 4 to the Company's Registration Statement on Form
S-2 (No. 333-04077) and incorporated herein by reference).
4.5 Form of Stock Purchase Agreement by and among the Company, J.
Whitney Haney and each of the Investors listed on Schedule I
thereto (previously filed).
4.6 Registration Rights Agreement, dated as of December 3, 2002, by
and among the Company and the parties named therein (previously
filed).
5.1 Legal Opinion of Testa, Hurwitz & Thibeault, LLP (to be filed
pursuant to an amendment hereto).
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1) (to be filed pursuant to an amendment hereto).
24.1 Power of Attorney (previously filed).
1