<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 12, 1998
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO FORM S-4*
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
DATAWORKS CORPORATION
(Exact name of Registrant as specified in its charter)
---------------
California 33-0209937
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
5910 Pacific Center Boulevard, Suite 300
San Diego, CA 92121
(Address of principal executive offices)
---------------
Options Assumed By DataWorks Corporation
Originally Granted Under the
Interactive Group, Inc.
1995 Stock Option Plan and
1997 Nonstatutory Stock Option Plan (the "Interactive Plans")
and Outside the Interactive Plans
(Full title of the plans)
---------------
Stuart W. Clifton
Chairman, President and Chief Executive Officer
DATAWORKS CORPORATION
5910 Pacific Center Boulevard, Suite 300
San Diego, California 92121
(Name and address of agent for service)
---------------
(619) 546-9600
(Telephone number, including area code, of agent for service)
Copies to:
Frederick T. Muto, Esq.
Thomas A. Coll, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
---------------
* See Explanatory Note following this cover page.
1
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 407,750 shares (1) (1) (1)
Common Stock, no par value 13,641 shares $23.4375 $319,710.93 $94.31
===============================================================================================================
</TABLE>
(1) Registration fee with respect to these Shares was previously paid in
connection with the filing of Registrant's Registration Statement on Form
S-4 (File No. 333-33451) which was declared effective August 20, 1997. See
Explanatory Note below.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c). The price per share and the
aggregate offering price are calculated on the basis of the average of the
high and low sales prices of Registrant's Common Stock on February 5, 1998
as reported on the Nasdaq National Market.
EXPLANATORY NOTE
DataWorks Corporation (the "Registrant") hereby amends its Registration
Statement on Form S-4 (File No. 333-33451), effective August 20, 1997 (the "Form
S-4"), by filing this Post-Effective Amendment No. 1 on Form S-8 to the Form S-4
(the "Registration Statement") relating to 421,391 shares of Common Stock, no
par value, of the Registrant (the "Common Stock") issuable in connection with
the Interactive Group, Inc. 1995 Stock Option Plan, the Interactive Group, Inc.
1997 Nonstatutory Stock Option Plan (collectively, the "Plans") and options
granted by Interactive Group, Inc. outside of the Plans (the "Non-Plan
Options").
On September 29, 1997, pursuant to an Agreement and Plan of Merger and
Reorganization, dated as of July 31, 1997 (the "Merger Agreement"), Interactive
Group, Inc. ("Interactive") became a wholly owned subsidiary of the Registrant
(the "Merger"). As provided in the Merger Agreement, each outstanding share of
common stock, $.001 par value, of Interactive ("Interactive Common Stock") was
converted into the right to receive .8054 shares of the Registrant's Common
Stock.
Pursuant to the Merger Agreement, Interactive and the Registrant have taken
such actions as are necessary such that Interactive Common Stock is no longer
issuable under the Plans and the Non-Plan Options. Instead, the Registrant's
Common Stock will be issuable under the Plans and upon exercise of Non-Plan
Options in such amounts and at such prices as adjusted pursuant to the Plans,
the Non-Plan Options and the Merger Agreement.
This Registration Statement relates to the 407,750 shares of the
Registrant's Common Stock registered on the Form S-4, plus an additional 13,641
shares of the Registrant's Common Stock which have not been registered, that
will not be issued in the Merger and that are issuable with respect to the Plans
and the Non-Plan Options.
================================================================================
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant's Annual Report on Form 10-K for the fiscal year ended December
31, 1996, the Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1997, the Registrant's Proxy Statement for
the 1997 Annual Meeting of Shareholders filed pursuant to Rule 14a-6 of the
Exchange Act, the Registrant's Prospectus/Joint Proxy Statement dated August 22,
1997, the Registrant's Registration Statement on Form S-4 (No. 333-33451) filed
on August 12, 1997, the Registrant's Current Report on Form 8-K dated July 31,
1997, the Registrant's Current Report on Form 8-K dated September 29, 1997, the
Registrant's Current Report on Form 8-K dated February 3, 1998 and the
description of the common stock contained in the Registrant's Registration
Statement on Form 8-A filed on September 20, 1995, each as filed by the
Registrant with the Commission, are hereby incorporated by reference in this
registration statement except as superseded or modified herein. All documents
subsequently filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the filing of a post-effective amendment to
this registration statement which indicates that all securities offered hereby
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference into this registration statement and to
be a part hereof from the date of filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Articles of Incorporation include
provisions to eliminate the personal liability of its directors to the fullest
extent permitted by Section 204(a)(10) under the General Corporation Law of
California (the "California Law"). In addition, the Registrant's Bylaws include
provisions that require the Registrant to indemnify its directors and executive
officers to the fullest extent permitted by Section 317 of the California Law,
including circumstances in which indemnification is otherwise discretionary. The
Bylaws also provide the Registrant with the authority to indemnify its other
officers, employees and other agents as set forth in the California Law.
Pursuant to Section 317 of the California Law, a corporation generally has the
power to indemnify its present and former directors, officers, employees and
agents against expenses incurred by them in connection with any suit to which
they are, or are threatened to be made, a party by reason of their serving in
such positions so long as they acted
II-1
<PAGE> 4
in good faith and in a manner they reasonably believed to be in the best
interests of a corporation, and with respect to any criminal action, so long as
they had no reasonable cause to believe their conduct was unlawful. The
Registrant believes that these provisions are necessary to attract and retain
qualified persons as directors and officers. These provisions do not eliminate
liability for breach of the director's duty of loyalty to the Registrant or its
shareholders, for acts or omissions involving intentional misconduct or knowing
and culpable violations of law, for acts or omissions that the director believes
to be contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the director, for any
transaction from which the director derived an improper personal benefit, for
acts or omissions involving a reckless disregard for the director's duty to the
Company or its shareholders when the director was aware or should have been
aware of a risk of serious injury to the Company or its shareholders, for acts
or omissions that constitute an unexcused pattern of inattention that amounts to
an abdication of the director's duty to the Company or its shareholders, for
improper distributions to shareholders and loans to directors and officers, or
for acts or omissions by the director as an officer.
The Registrant has entered into agreements with its directors and executive
officers that require the Registrant to indemnify such persons against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the
Registrant or any of its affiliated enterprises, provided such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
At present, there is no pending litigation or proceeding involving a Director or
officer of the Registrant as to which indemnification is being sought nor is the
Registrant aware of any threatened litigation that may result in claims for
indemnification by any officer or Director.
The Registrant has an insurance policy covering the officers and Directors of
the Registrant with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------
3.1 Registrant's Amended and Restated Articles of Incorporation.(1)
3.2 Registrant's Amended and Restated Bylaws.(1)
II-2
<PAGE> 5
3.3 Amendment to Bylaws.(1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Romito, Tomasetti & Associates, P.C.
23.4 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages to
Registration Statement on Form S-4 (File No. 333-33451).
99.1 Interactive Group, Inc.'s 1995 Stock Option Plan, as amended (the
"1995 Plan").(2)
99.2 Form of Incentive Stock Option under the 1995 Plan.(3)
99.3 Interactive Group, Inc.'s 1997 Nonstatutory Stock Option Plan (the
"1997 Plan").(4)
99.4 Form of Nonstatutory Stock Option under the 1997 Plan.(4)
- ------------------
(1) Filed as an exhibit to Registrant's Registration Statement on Form SB-2
(No. 33-97022 LA) or amendments thereto and incorporated herein by
reference.
(2) Filed as an exhibit to Interactive Group, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1996 and incorporated herein by reference.
(3) Filed as an exhibit to Interactive Group, Inc.'s Registration Statement on
Form S-1 (No. 33-90816) and incorporated herein by reference.
(4) Filed as an exhibit to Interactive Group, Inc.'s Registration Statement on
Form S-8 (No. 33-99440) and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. 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 end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) (ss. 230.424(b) of
this chapter) if, in the aggregate, the
II-3
<PAGE> 6
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this
Registration Statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, 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.
(b) Filings Incorporating Subsequent Exchange Act Documents By
Reference.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer 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 and will be governed by the final
adjudication of such issue.
II-4
<PAGE> 7
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on the 11th day of
February, 1998.
DATAWORKS CORPORATION
By: /s/ STUART W. CLIFTON*
--------------------------------
Stuart W. Clifton
Chief Executive Officer, President
and Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ STUART W. CLIFTON* President, Chief Executive Officer, February 11, 1998
- ----------------------------------- Chairman of the Board and Director
Stuart W. Clifton (Principal Executive Officer)
/s/ NORMAN R. FARQUHAR Executive Vice President, Chief February 11, 1998
- ----------------------------------- Financial Officer and Director
Norman R. Farquhar (Principal Financial Officer)
/s/ RICK E.RUSSO* Vice President, Finance and Secretary February 11, 1998
- ----------------------------------- (Principal Accounting Officer)
Rick E. Russo
/s/ NORMAN R. FARQUHAR* Director February 11, 1998
- -----------------------------------
Nathan W. Bell
/s/ TONY N. DOMIT* Director February 11, 1998
- -----------------------------------
Tony N. Domit
/s/ WILLIAM P. FOLEY II* Director February 11, 1998
- -----------------------------------
William P. Foley II
/s/ RONALD S. PARKER* Director February 11, 1998
- -----------------------------------
Ronald S. Parker
/s/ ROY THIELE-SARDINA* Director February 11, 1998
- -----------------------------------
Roy Thiele-Sardina
</TABLE>
II-5
<PAGE> 8
<TABLE>
<CAPTION>
<S> <C> <C>
President, International Operations
- ----------------------------------- and Director
Robert C. Vernon
</TABLE>
* By: /s/ NORMAN R. FARQUHAR
------------------------------
Norman R. Farquhar
Attorney-in-Fact
II-6
<PAGE> 9
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------
3.1 Registrant's Amended and Restated Articles of Incorporation.(1)
3.2 Registrant's Amended and Restated Bylaws.(1)
3.3 Amendment to Bylaws.(1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Romito, Tomasetti & Associates, P.C.
23.4 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages to
Registration Statement on Form S-4 (File No. 333-33451).
99.1 Interactive Group, Inc.'s 1995 Stock Option Plan, as amended (the
"1995 Plan").(2)
99.2 Form of Incentive Stock Option under the 1995 Plan.(3)
99.3 Interactive Group, Inc.'s 1997 Nonstatutory Stock Option Plan (the
"1997 Plan").(4)
99.4 Form of Nonstatutory Stock Option under the 1997 Plan.(4)
- ------------------
(1) Filed as an exhibit to Registrant's Registration Statement on Form SB-2
(No. 33-97022 LA) or amendments thereto and incorporated herein by
reference.
(2) Filed as an exhibit to Interactive Group, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1996 and incorporated herein by reference.
(3) Filed as an exhibit to Interactive Group, Inc.'s Registration Statement on
Form S-1 (No. 33-90816) and incorporated herein by reference.
(4) Filed as an exhibit to Interactive Group, Inc.'s Registration Statement on
Form S-8 (No. 33-99440) and incorporated herein by reference.
<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LLP LETTERHEAD]
February 11, 1998
DataWorks Corporation
5910 Pacific Center Drive, Suite 300
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by DataWorks Corporation (the "Company") of a Post-Effective
Amendment on Form S-8 to the Form S-4 Registration Statement (File No.
333-33451) (the "Registration Statement") with the Securities and Exchange
Commission, covering the registration of up to 421,391 shares of the Company's
Common Stock, no par value (the "Shares"), for issuance upon exercise of options
granted under the Interactive Group, Inc. 1995 Stock Option Plan and the
Interactive Group, Inc. 1997 Nonstatutory Stock Option Plan (collectively, the
"Plans") and options granted outside of the Plans (the "Non-Plan Options"). The
options granted under the Plans and the Non-Plan Options are hereinafter
collectively referred to as the "Options."
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plans, the Options, the Company's Amended and
Restated Articles of Incorporation and Bylaws, and the originals or copies
certified to our satisfaction of such records, documents, certificates,
memoranda and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued and sold in accordance with the Registration
Statement and the Plans and/or the Options, as the case may be, will be validly
issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
/s/ THOMAS A. COLL
- -----------------------------------
Thomas A. Coll
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Post-Effective Amendment No. 1 on Form S-8 to Form S-4) pertaining to Options
assumed by DataWorks Corporation originally granted under the Interactive
Group, Inc. 1995 Stock Option Plan and 1997 Nonstatutory Stock Option Plan and
Outside the Interactive Plans of DataWorks Corporation of our report dated
January 31, 1997, with respect to the consolidated financial statements
included in its Annual Report (Form 10-K) for the year ended December 31, 1996
and our report dated February 19, 1997 with respect to the supplemental
consolidation financial statements of DataWorks Corporation included in its
Current Report on Form 8-K dated February 3, 1998, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
San Diego, California
February 11, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement (Post-Effective Amendment No. 1 on Form S-8 to Form S-4) of DataWorks
Corporation of our report dated April 5, 1996, relating to the financial
statements of DCD Corporation, appearing on page F-3 of the DataWorks
Corporation Annual Report on Form 10-K for the year ended December 31, 1996. We
also consent to the incorporation by reference of our report dated April 5,
1996, relating to the financial statements of DCD Corporation, appearing on
page F-3 of the DataWorks Corporation Current Report on Form 8-K dated February
3, 1998.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
Minneapolis, Minnesota
February 11, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT TOMASETTI & ASSOCIATES, P.C.,
INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Prospectus constituting part
of this Registration Statement on Form S-8 of DataWorks Corporation of our
report dated March 17, 1995, with respect to the combined financial statements
of Intrepid Software, Inc., included in the financial statements of Interactive
Group, Inc. for the fiscal year ended December 31, 1996.
ROMITO, TOMASETTI & ASSOCIATES, P.C.
Burlington, Massachusetts
February 11, 1998
