As filed with the Securities and Exchange Commission on March 25,
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
The Titan Corporation
(Exact name of Registrant as specified in its charter)
Delaware 95-2588754
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3033 Science Park Road
San Diego, CA 92121-1199
(Address of principal executive offices)
Options Assumed By The Titan Corporation
Originally Granted Under the
DBA Systems, Inc.
1992 Employee Incentive Stock Option Plan and
1993 Directors' Stock Option Plan (the "DBA Plans")
and Outside the DBA Plans
(Full title of the plans)
Ira Frazer
Senior Vice President,
General Counsel and Secretary
THE TITAN CORPORATION
3033 Science Park Road
San Diego, California 92121-1199
(Name and address of agent for service)
(619) 552-9500
(Telephone number, including area code, of agent for service)
Copies to:
M. Wainwright Fishburn, Esq.
Jeremy D. Glaser, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
* See Explanatory Note following this cover page.
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share offering price fee
- --------------------------------------------------------------------------
Common Stock, 441,020 (1) (1) (1)
$.01 par value shares
(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. 333-45719) which was declared
effective February 6, 1998. See Explanatory Note below.
EXPLANATORY NOTE
The Titan Corporation (the "Registrant") hereby amends its
Registration Statement on Form S-4 (File No. 333-45719), effective
February 6, 1998 (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 441,020 shares of Common Stock, $.01 par
value, of the Registrant (the "Common Stock") issuable in
connection with the DBA Systems, Inc. 1992 Employee Incentive Stock
Option Plan and 1993 Directors' Stock Option Plan (collectively,
the "Plans") and options granted by DBA Systems, Inc. outside of
the Plans (the "Non-Plan Options").
On February 27, 1998, pursuant to an Agreement and Plan of
Merger and Reorganization, dated as of January 5, 1998 (the "Merger
Agreement"), DBA Systems, Inc. ("DBA") became a wholly owned
subsidiary of the Registrant (the "Merger"). As provided in the
Merger Agreement, each outstanding share of common stock, $.10 par
value, of DBA ("DBA Common Stock") was converted into the right to
receive 1.366667 shares of the Registrant's Common Stock.
Pursuant to the Merger Agreement, DBA and the Registrant have
taken such actions as are necessary such that DBA 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 441,020 shares of the
Registrant's Common Stock registered on the Form S-4, which were not
issued in connection with the Merger and that are issuable with
respect to the Plans and the Non-Plan Options.
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, 1997, the Registrant's Proxy Statement for the
1996 Annual Meeting of Stockholders filed pursuant to Rule 14a-6 of
the Exchange Act, the Registrant's Prospectus/Joint Proxy Statement
dated February 6, 1998, the Registrant's Registration Statement on
Form S-4 (No. 333-45719) filed on February 6, 1998, the
Registrant's Current Report on Form 8-K dated February 26, 1998,
the Registrant's Current Report on Form 8-K/A dated February 26,
1998, the Registrant's Registration Statement on Form S-4 (No. 333-
47633) filed on March 10, 1998, and the description of the common
stock contained in the Registrant's Registration Statement on Form
8-A filed with the Commission by Electronic Memories and Magnetics
Corporation, dated June 16, 1969; as amended by the Form 8 filed
with the Commission by the Registrant on January 22, 1986, and the
Form 8-B/A filed with the Commission by the Registrant on
July 31, 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.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") empowers a Delaware corporation to
indemnify any persons who are, or are threatened to be made,
parties to any threatened, pending or completed legal action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer
or director of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement of such action, suit or proceeding,
provided that such officer or director acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
corporation's best interest, and, for criminal proceedings, had no
reasonable cause to believe his or her conduct was illegal. A
Delaware corporation may indemnify officers and directors against
expenses (including attorney's fees) in connection with the defense
or settlement of an action by or in the right of the corporation
under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is
adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of
any action referred to above, the corporation must indemnify him or
her against the expenses which such officer or director actually
and reasonably incurred.
The Registrant's Bylaws contain a provision to limit the
personal liability of the directors of the Registrant for
violations of their fiduciary duty, except to the extent such
limitation of liability is prohibited by the Delaware Law. This
provision eliminates each director's liability to the Registrant or
its stockholders for monetary damages except (i) for any breach of
the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware Law providing for liability of
directors for unlawful payment of dividends or unlawful stock
purchases or redemptions, or (iv) for any transaction from which a
director derived an improper personal benefit. The Registrant's
Bylaws provide that the Registrant shall indemnify directors and
officers to the fullest extent permitted by law. The effect of
these provisions is to eliminate the personal liability of
directors for monetary damages for actions involving a breach of
their fiduciary duty of care, including any such actions involving
gross negligence.
In addition, Registrant has entered into indemnity agreements
with its executive officers and directors whereby Registrant
obligates itself to indemnify such officers and directors from any
amounts which the officer or director becomes obligated to pay
because of any claim made against him or her arising out of any act
or omission committed while he or she is acting in his or her
capacity as a director and/or officer of Registrant.
Registrant maintains directors and officers liability insurance
coverage that insures its officers and directors against certain
losses that may arise out of their positions with the Registrant
and insures the Registrant for liabilities it may incur to
indemnify its officers and directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Document
3.1 Registrant's Restated Certificate of Incorporation.(1)
3.2 Registrant's Certificate of Amendment of Restated
Certificate of Incorporation.(1)
3.3 Registrant's Bylaws, as amended.(2)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Deloitte & Touche LLP.
23.4 Consent of Cooley Godward LLP is contained in Exhibit 5.1
to this Registration Statement.
24.1 Power of Attorney (included in Part II of this
Registration Statement).
99.1 DBA Systems, Inc.'s 1992 Employee Incentive Stock Option
Plan (the "1992 Plan").(3)
99.2 Form of Incentive Stock Option under the 1992 Plan.(3)
99.3 DBA Systems, Inc.'s 1993 Directors Stock Option Plan (the
"Directors' Plan").(4)
99.4 Form of Nonstatutory Stock Option under the Directors'
Plan.(4)
----------------------
(1) Filed as an exhibit to Registrant's 1987 Annual Report on
Form 10-K and incorporated herein by reference.
(2) Filed as an exhibit to Registrant's Quarterly Report on
Form 10-Q dated November 13, 1995 and incorporated herein by
reference.
(3) Filed as an exhibit to DBA Systems, Inc.'s 1992 Definitive
Proxy Statement and incorporated herein by reference.
(4) Filed as an exhibit to DBA Systems, Inc.'s 1993 Definitive
Proxy Statement 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) (Section 230.424(b) of this
chapter) if, in the aggregate, the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, The Titan Corporation has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, County of San Diego,
State of California, on March 24, 1998.
THE TITAN CORPORATION
By:
/s/ Gene W. Ray
===================================
Gene W. Ray,
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Gene W. Ray, Eric
M. DeMarco and Ira Frazer, and each or any one of them, as his true
and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place,
and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments, exhibits thereto
and other documents in connection therewith) to this Registration
Statement and any subsequent registration statement filed by the
registrant pursuant to Rule 462(b) of the Securities Act of 1933,
as amended, which relates to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on
the dates indicated.
Signature Title Date
/s/ J.S. Webb Chairman of the March 24, 1998
=================== Board of Directors
J.S. Webb
/s/ Gene W. Ray President and Chief March 24, 1998
=================== Executive Officer
Gene W. Ray (Principal Executive
Officer) and Director
/s/ Eric M. DeMarco Senior Vice President March 24, 1998
=================== and Chief Financial
Eric M. DeMarco Officer (Principal
Financial and Accounting
Officer)
/s/ Charles R. Allen Director March 24, 1998
===================
Charles R. Allen
/s/ Joseph F. Caligiuri Director March 24, 1998
===================
Joseph F. Caligiuri
/s/ Daniel J. Fink Director March 24, 1998
===================
Daniel J. Fink
/s/ Robert E. LaBlanc Director March 24, 1998
===================
Robert E. LaBlanc
/s/ Thomas G. Pownall Director March 24, 1998
===================
Thomas G. Pownall
EXHIBIT INDEX
Exhibit
Number Description of Document
3.1 Registrant's Restated Certificate of Incorporation.(1)
3.2 Registrant's Certificate of Amendment of Restated
Certificate of Incorporation.(1)
3.3 Registrant's Bylaws, as amended.(2)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Deloitte & Touche LLP.
23.4 Consent of Cooley Godward LLP is contained in Exhibit 5.1
to this Registration Statement.
24.1 Power of Attorney (included in Part II of this
Registration Statement)
99.1 DBA Systems, Inc.'s 1992 Employee Incentive Stock Option
Plan (the "1992 Plan").(3)
99.2 Form of Incentive Stock Option under the 1992 Plan.(3)
99.3 DBA Systems, Inc.'s 1993 Directors Stock Option Plan (the
"Directors' Plan").(4)
99.4 Form of Nonstatutory Stock Option under the Directors'
Plan.(4)
- ----------------------
(1) Filed as an exhibit to Registrant's 1987 Annual Report on
Form 10-K and incorporated herein by reference.
(2) Filed as an exhibit to Registrant's Quarterly Report on
Form 10-Q dated November 13, 1995 and incorporated herein by
reference.
(3) Filed as an exhibit to DBA Systems, Inc.'s 1992 Definitive
Proxy Statement and incorporated herein by reference.
(4) Filed as an exhibit to DBA Systems, Inc.'s 1993 Definitive
Proxy Statement and incorporated herein by reference.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of
our reports included in or made part of this registration
statement.
/S/ ARTHUR ANDERSEN LLP
San Diego, California
March 19, 1998
EXHIBIT 23.2
[DELOITTE & TOUCHE LLP LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-effective
Amendment No. 1 on Form S-8 to Form S-4 of the Titan Corporation of
our report on DBA Systems, Inc. for the year ended June 30, 1997,
dated August 20, 1997, appearing in the Registration Statement on
Form S-4 (No. 333-45719) of The Titan Corporation.
/S/ Deloitte & Touche LLP
Orlando, Florida
March 20, 1998
EXHIBIT 5.1
[COOLEY GODWARD LLP LETTERHEAD]
March 23, 1998
The Titan Corporation
3033 Science Park Road
San Diego, CA 92121-1199
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by The Titan Corporation (the "Company")
of a Post-Effective Amendment on Form S-8 to the Form S-4
Registration Statement (File No. 333-45719) (the "Registration
Statement") with the Securities and Exchange Commission, covering
the registration of up to 441,020 shares of the Company's Common
Stock, par value $.01 (the "Shares"), for issuance upon exercise of
options granted under the DBA Systems, Inc. 1992 Employee Incentive
Stock Plan and the DBA Systems, Inc. 1993 Directors' 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.
Sincerely,
COOLEY GODWARD LLP
By:/s/ M. Wainwright Fishburn. Jr.
===============================
M. Wainwright Fishburn. Jr.
