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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 1998
REGISTRATION NO. 333-53939
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SOFTWORKS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 7372 52-1092916
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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5845 RICHMOND HIGHWAY, SUITE 400
ALEXANDRIA, VIRGINIA 22303
(703) 317-2424
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JUDY G. CARTER
CHIEF EXECUTIVE OFFICER
SOFTWORKS, INC.
5845 RICHMOND HIGHWAY, SUITE 400
ALEXANDRIA, VIRGINIA 22303
(703) 317-2424
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
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DAVID H. LIEBERMAN, ESQ. IRA A. GREENSTEIN, ESQ.
BLAU, KRAMER, WACTLAR & LIEBERMAN, P. C. MORRISON & FOERSTER LLP
100 JERICHO QUADRANGLE, SUITE 225 1290 AVENUE OF THE AMERICAS
JERICHO, NEW YORK 11753 NEW YORK, NEW YORK 10104
TEL: (516) 822-4820 TEL: (212) 468-8000
FAX: (516) 822-4824 FAX: (212) 468-7900
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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, please check the following box. [ ]
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. [ ]
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
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Common Stock, par value $.001 per share............ $48,300,000 $14,249(2)
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act.
(2) Previously paid.
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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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of the distribution, all of which shall be borne by
the Company, are as follows:
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ITEM AMOUNT
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SEC registration fee........................................ $ 14,394
NASD filing fee............................................. 5,325
Nasdaq Application.......................................... 90,500
Blue Sky fees and expenses (including legal fees)........... 12,000
Transfer Agent fees......................................... 3,950
Accounting fees and expenses................................ 250,000
Legal fees and expenses..................................... 245,000
Printing and Engraving fees................................. 105,000
Miscellaneous............................................... 23,831
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Total............................................. $750,000
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company, a Delaware corporation, is empowered by Section 145 of the
Delaware General Corporation Law (the "Delaware Act"), subject to the procedures
and limitations stated therein, to indemnify certain parties. Section 145 of the
Delaware Act provides in part that a corporation shall have the power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and with respect
to any criminal action or proceeding had no reasonable cause to believe his
conduct was unlawful. Similar indemnity is authorized for such persons against
expenses (including attorneys' fees) actually and reasonably incurred in defense
or settlement of any threatened, pending or completed action or suit by or in
the right of the corporation, if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and provided further that (unless a court of competent jurisdiction
otherwise provides) such person shall not have been adjudged liable to the
corporation. Any such indemnification may be made only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct. Where an officer or a director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually or reasonably incurred. Section 145 provides further that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any law, agreement, vote
of stockholders or disinterested directors or otherwise.
The Company's Certificate of Incorporation and By-laws contain provisions
that limit the potential personal liability of directors for certain monetary
damages and provide for indemnity of directors and other persons. The Company
has applied for officers and directors liability insurance. The Company is
unaware of any pending or threatened litigation against the Company or its
directors that would result in any liability for which such director would seek
indemnification or similar protection.
The provisions affecting personal liability do not abrogate a director's
fiduciary duty to the Company and its stockholders, but eliminate personal
liability for monetary damages for breach of that duty. The provisions
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do not, however, eliminate or limit the liability of a director for failing to
act in good faith, for engaging in intentional misconduct or knowingly violating
a law, for authorizing the illegal payment of a dividend or repurchase of stock,
for obtaining an improper personal benefit, for breaching a director's duty of
loyalty (which is generally described as the duty not to engage in any
transaction that involves a conflict between the interests of the Company and
those of the director) or for violations of the federal securities laws. The
provisions also limit or indemnify against liability resulting from grossly
negligent decisions, including grossly negligent business decisions relating to
attempts to change control of the Company.
The provisions regarding indemnification provide, in essence, that the
Company will indemnify its directors against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with any action, suit or proceeding arising out of the
director's status as a director of the Company, including actions brought by or
on behalf of the Company (stockholder derivative actions). The provisions do not
require a showing of good faith. Moreover, they do not provide indemnification
for liability arising out of willful misconduct, fraud, or dishonesty, for
"short-swing" profits violations under the federal securities laws, or for the
receipt of illegal remuneration. The provisions also do not provide
indemnification for any liability to the extent such liability is covered by
insurance. One purpose of the provisions is to supplement the coverage provided
by such insurance.
These provisions diminish the potential rights of action that might
otherwise be available to stockholders by limiting the liability of officers and
directors to the maximum extent allowable under Delaware law and by affording
indemnification against most damages and settlement amounts paid by a director
of the Company in connection with any stockholders derivative action. However,
the provisions do not have the effect of limiting the right of a stockholder to
enjoin a director from taking actions in breach of the director's fiduciary
duty, or to cause the Company to rescind actions already taken, although as a
practical matter courts may be unwilling to grant such equitable remedies in
circumstances in which such actions have already been taken.
The Company has entered into indemnification agreements with certain of its
officers. The indemnification agreements provide for reimbursement for all
direct and indirect costs of any type or nature whatsoever (including attorneys'
fees and related disbursements) actually and reasonably incurred in connection
with either the investigation, defense or appeal of a legal proceeding,
including amounts paid in settlement by or on behalf of an indemnitee
thereunder.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In May 1998, the Company effected a reincorporation into the State of
Delaware pursuant to an agreement and plan of merger by and between the Company
and SOFTWORKS, Inc., a Maryland corporation (the "Merger"). The issuance of
shares by the Company in connection with the Merger was exempt from registration
under the Securities Act pursuant to Section 3(a)(9) thereof.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
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EXHIBITS
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1.1 Form of Underwriting Agreement*
1.2 Form of Agreement Among Underwriters*
1.3 Form of Selected Dealer Agreement*
3.1 Certificate of Incorporation of the Registrant*
3.2 By-laws of the Registrant*
4.1 Specimen Common Stock Certificate*
5.1 Form of Opinion and Consent of Blau, Kramer, Wactlar &
Lieberman, P.C. regarding the legality of the securities
being registered
9 Form of Voting Trust Agreement*
10.1 Lease Agreement dated June 14, 1994 between the Registrant
and WHT Real Estate Limited Partnership*
10.2 First Amendment to Lease Agreement*
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EXHIBITS
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10.3 Second Amendment to Lease Agreement*
10.4 1998 Long Term Incentive Plan*
10.5 Employment Agreement between the Registrant and James
Cannavino*
10.6 Employment Agreement between the Registrant and C. R.
Kinsey, III*
10.7 Employment Agreement between the Registrant and Judy G.
Carter*
10.8 Employment Agreement between the Registrant and Lisa Welch*
10.9 Employment Agreement between the Registrant and Joseph
Miksch*
10.10 Employment Agreement between the Registrant and Robert
McLaughlin*
10.11 Form of Indemnification Agreement between the Company and
its officers and directors*
10.12 Distribution Agreement dated July 8, 1997 between the
Registrant and Cognizant Technology Solutions Corporation*
21 The following lists the Company's subsidiaries:
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NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION
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SOFTWORKS International, Limited United Kingdom
SOFTWORKS SAVANTECHNOLOGY
International, S.A. Spain
SOFTWORKS International, Pty. Limited Australia
SOFTWORKS SAVANTECHNOLOGY do Brazil Ltda Brazil
SOFTWORKS S.A. France
SOFTWORKS Italia S.r.1. Italy
SOFTWORKS Services Corp. Texas
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23.1 Consent of Arthur Andersen LLP*
23.2 Consent of Blau, Kramer, Wactlar & Lieberman, P.C. (included
in Exhibit 5)
24 Power of Attorney (included in signature page)*
27.1 Financial Data Schedule*
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* Previously filed
FINANCIAL STATEMENT SCHEDULES
Not applicable.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
For purposes of determining any liability under the Securities Act of
1933 (the "Act"), the information omitted from the form of Prospectus filed
as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Company pursuant to Rule
424(b)(1) and (4) and Rule 497(h) under the Act shall be deemed to be part
of this Registration Statement as of the time it was declared effective.
For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
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 may be permitted to directors, officers, and controlling
persons of the issuer pursuant to the foregoing provisions, or otherwise,
the issuer 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 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the
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issuer of expenses incurred or paid by a director, officer or controlling
person of the issuer 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 issuer 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in New York, New York on
the 30th day of July, 1998.
SOFTWORKS, Inc.
By: /s/ JUDY G. CARTER
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Judy G. Carter
President (Chief Executive Officer)
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed below on July 30, 1998, by the
following persons in the capacities indicated.
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SIGNATURE TITLE
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/s/ JAMES A. CANNAVINO* Chairman of the Board and Director
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James A. Cannavino
/s/ JUDY G. CARTER President, Chief Executive Officer and a
- ----------------------------------------------------- Director
Judy G. Carter
/s/ C. R. KINSEY, III* Vice President and Secretary
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C. R. Kinsey, III
/s/ ROBERT C. MCLAUGHLIN* Treasurer and Chief Financial Officer
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Robert C. McLaughlin
/s/ DANIEL DELGIORNO, JR.* Director
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Daniel DelGiorno, Jr.
/s/ ROBERT DEVINE* Director
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Robert Devine
/s/ CHARLES FELD Director
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Charles Feld
*By: /s/ JUDY G. CARTER
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Judy G. Carter
Attorney-in-fact
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EXHIBIT INDEX
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EXHIBITS PAGE
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1.1 Form of Underwriting Agreement*
1.2 Form of Agreement Among Underwriters*
1.3 Form of Selected Dealer Agreement*
3.1 Certificate of Incorporation of the Registrant*
3.2 By-laws of the Registrant*
4.1 Specimen Common Stock Certificate*
5.1 Form of Opinion and Consent of Blau, Kramer, Wactlar &
Lieberman, P.C. regarding the legality of the securities
being registered
9 Form of Voting Trust Agreement*
10.1 Lease Agreement dated June 14, 1994 between the Registrant
and WHT Real Estate Limited Partnership*
10.2 First Amendment to Lease Agreement*
10.3 Second Amendment to Lease Agreement*
10.4 1998 Long Term Incentive Plan*
10.5 Employment Agreement between the Registrant and James
Cannavino*
10.6 Employment Agreement between the Registrant and C. R.
Kinsey, III*
10.7 Employment Agreement between the Registrant and Judy G.
Carter*
10.8 Employment Agreement between the Registrant and Lisa Welch*
10.9 Employment Agreement between the Registrant and Joseph
Miksch*
10.10 Employment Agreement between the Registrant and Robert
McLaughlin*
10.11 Form of Indemnification Agreement between the Company and
its officers and directors*
10.12 Distribution Agreement dated July 8, 1997 between the
Registrant and Cognizant Technology Solutions Corporation*
21 The following lists the Company's subsidiaries:
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NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION
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SOFTWORKS International, Limited United Kingdom
SOFTWORKS SAVANTECHNOLOGY
International, S.A. Spain
SOFTWORKS International, Pty. Limited Australia
SOFTWORKS SAVANTECHNOLOGY do Brazil Ltda Brazil
SOFTWORKS S.A. France
SOFTWORKS Italia S.r.1. Italy
SOFTWORKS Services Corp. Texas
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23.1 Consent of Arthur Andersen LLP*
23.2 Consent of Blau, Kramer, Wactlar & Lieberman, P.C. (included
in Exhibit 5)
24 Power of Attorney (included in signature page)*
27.1 Financial Data Schedule*
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* Previously filed
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Exhibit 5.1
[BLAU, KRAMER,WACTLAR & LIEBERMAN, P.C. LETTERHEAD]
July 9, 1998
Securities and Exchange Commission
450 Fifth Avenue
Washington, D.C. 20549
RE: SOFTWORKS, INC.
REGISTRATION STATEMENT ON FORM S-1
Gentlemen:
Reference is made to the filing by Softworks, Inc. (the "Company") of a
Registration Statement on Form S-1 (the "Registration Statement") with the
Securities and Exchange Commission pursuant to the provisions of the Securities
Act of 1933, as amended, covering the registration of 4,830,000 shares of Common
Stock of the Company, par value $.001 per share (the "Common Stock").
As counsel for the Company, we have examined its corporate records,
including its Certificate of Incorporation, By-Laws, its corporate minutes, the
form of its Common Stock certificate and such other documents as we have deemed
necessary or relevant under the circumstances.
Based upon our examination, we are of the opinion that:
1. The Company is duly organized and validly existing under the laws of
the State of Delaware.
2. The shares of Common Stock subject to the Registration Statement
have been duly authorized and, when issued will be legally issued, fully paid
and non-assessable.
3. The 3,130,000 previously issued shares of Common Stock covered by
the Registration Statement to be sold by the Selling Stockholders have been
legally issued, fully paid and are non-assessable.
We hereby consent to be named in the Registration Statement and in the
prospectus which constitutes a part thereof as counsel to the Company, and we
hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ BLAU, KRAMER, WACTLAR
& LIEBERMAN, P.C.
