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As Filed With the Securities and Exchange Commission on June 16, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EPICOR SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-0277592
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
195 Technology Drive, Irvine, California 92618-2402
(Address of Principal Executive Offices) (Zip Code)
KEY EMPLOYEE NONQUALIFIED OPTION AGREEMENTS
(Full title of plans)
L. George Klaus, Chief Executive Officer
Epicor Software Corporation
195 Technology Drive
Irvine, California 92618-2402
(Name and address of agent for service)
(949) 585-4000
(Telephone number, including area code, of agent for service)
Copies to:
Perry Tarnofsky, Esq.
Epicor Software Corporation
195 Technology Drive
Irvine, CA 92618-2402
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock, 700,000 (1) $6.3594 $4,451,580(2) $1,175.22
$.001 par value shares
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</TABLE>
(1) This Registration Statement covers an aggregate of 700,000 shares of
Common Stock which may be issued pursuant to two Nonqualified Stock
Option Agreements dated November 16, 1999 between Registrant and Richard
L. Roll together with such additional shares of Common Stock as may be
issued to the holder of such options pursuant to anti-dilution
provisions.
(2) In accordance with Rule 457(h), the aggregate offering price of 700,000
shares of Common Stock registered hereby which would be issued upon
exercise of options granted under the Nonqualified Stock Option
Agreements are based upon the per share exercise price of such options,
which is $6.3594 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Registrant with the
Securities and Exchange Commission (the "Commission") and are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ending
December 31, 1999.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ending March 31, 2000.
(c) All other reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the annual report referred to
in (a) above.
(d) The description of the Registrant's Common Stock which is contained
in the Registrant's registration statement on Form 8-A filed on October 15, 1992
pursuant to Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the registration statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part hereof from the date of
the filing of such documents; except as to any portion of any future annual or
quarterly report to stockholders or document that is not deemed filed under such
provisions. For the purposes of this registration statement, any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 145 of the Delaware General Corporation Law authorizes a
court to award a corporation's Board of Directors the power to indemnify
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. The
Registrant's Second Restated Certificate of Incorporation, as amended, and the
Registrant's Bylaws provide for indemnification of its directors, officers,
employees and other agents to the maximum extent permitted by Delaware Law. In
addition, the Registrant has entered into Indemnification Agreements with its
officers and directors.
(b) Pursuant to an Agreement and Plan of Reorganization ("Merger
Agreement") between Registrant and DataWorks Corporation, from and after the
time of the merger, Registrant has agreed to cause the surviving corporation in
the merger to fulfill and honor in all respects the obligations of DataWorks
pursuant to any indemnification agreements between DataWorks and its directors
and officers as of the time of the merger (the "Indemnified Parties") and any
indemnification provisions under DataWorks' Certificate of Incorporation
("DataWorks' Certificate") and DataWorks' Bylaws as in effect on the date of the
Merger Agreement. The Certificate of Incorporation and Bylaws of the surviving
corporation in the merger contain provisions with respect to exculpation and
indemnification that are at least as favorable to the Indemnified Parties as
those contained in DataWorks' Certificate and Bylaws as in effect on the date of
the Merger Agreement, which provisions will not be amended, repealed or
otherwise modified for a period of six years from the time of the merger in any
manner that would adversely affect the rights thereunder of individuals who,
immediately prior to the time of the merger, were directors, officers, employees
or agents of DataWorks, unless such modification is required by law.
(c) Pursuant to the Merger Agreement, for a period of six years after
the time of the merger, Registrant agreed to cause the surviving corporation in
the merger to use its commercially reasonable efforts to maintain in effect, if
available, director's and officer's liability insurance covering those persons
who were covered by DataWorks' director's and officer's liability insurance
policy on terms comparable to those applicable to the DataWorks director and
officer insurance policy; provided, however that in no event will Registrant or
the surviving corporation in the merger be required to expend in excess of 150%
of the annual premium paid by DataWorks for such coverage (or such coverage as
is available for such 150% of such annual premium).
.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<S> <C>
4.1 Nonqualified Stock Option Agreement covering 500,000 shares,
dated November 16, 1999 between Epicor Software Corporation and
Richard L. Roll (filed as an exhibit to Registrant's Annual
Report on Form 10-K for the year ending December 31, 1999).
4.2 Nonqualified Stock Option Agreement covering 200,000 shares,
dated November 16, 1999 between Epicor Software Corporation and
Richard L. Roll (filed as an exhibit to Registrant's Annual
Report on Form 10-K for the year ending December 31, 1999).
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati.
23.1 Consent of Wilson, Sonsini, Goodrich & Rosati, (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (included on the signature page to the
Registration Statement - see pages II-4 through II-6).
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ITEM 9. UNDERTAKINGS.
(a) 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 (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;
(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 the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and 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 Exchange Act
that are incorporated by reference in the 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 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.
(b) 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.
(c) 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
Securities and Exchange Commission such indemnification is against
public policy as expressed in the 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 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 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 Irvine, State of California, on the 26th day of April
2000.
EPICOR SOFTWARE CORPORATION
By:/s/ L. George Klaus
----------------------------------------------
L. George Klaus
Chairman of the Board and Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of Epicor Software
Corporation, do hereby constitute and appoint L. George Klaus and Lee Kim, or
either of them, our true and lawful attorneys-in-fact and agents, each 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 to this
Registration Statement, and to file the same, with 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 are
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each of said attorney-in-fact and agents, 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, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman of the Board and
/s/ L. George Klaus Chief Executive Officer April 26, 2000
---------------------- (Principal Executive
L. George Klaus Officer)
Vice President, Chief
/s/ Lee Kim Financial Officer April 26, 2000
---------------------- (Principal Accounting and
Lee Kim Financial Officer)
/s/ Arthur J. Marks Director April 26, 2000
----------------------
Arthur J. Marks
/s/ L. John Doerr Director April 26, 2000
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L. John Doerr
/s/ Donald R. Dixon Director April 26, 2000
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Donald R. Dixon
/s/ Thomas Kelly Director April 26, 2000
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Thomas Kelly
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
------ ----------- ------------
<S> <C> <C>
4.1 Nonqualified Stock Option Agreement covering 500,000 shares, dated
November 16, 1999 between Epicor Software Corporation and Richard
L. Roll (filed as an exhibit to Registrant's Annual Report on Form
10-K for the year ending December 31, 1999).
4.2 Nonqualified Stock Option Agreement covering 200,000 shares, dated
November 16, 1999 between Epicor Software Corporation and Richard
L. Roll (filed as an exhibit to Registrant's Annual Report on Form
10-K for the year ending December 31, 1999).
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati.
23.1 Consent of Wilson, Sonsini, Goodrich & Rosati (Included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (included on the signature page to the
Registration Statement - see pages II-4 through II-5.)
</TABLE>
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