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As filed with the Securities and Exchange Commission on October 2, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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INDUS INTERNATIONAL, INC.
(Exact name of issuer as specified in its charter)
Delaware 94-3273443
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(State of Incorporation) (I.R.S. Employer
Identification No.)
60 Spear Street
San Francisco, CA 94105
(Address of principal executive offices)
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THE INDUS GROUP, INC. 1992 STOCK OPTION PLAN
THE INDUS GROUP, INC. 1995 STOCK PLAN
THE INDUS GROUP, INC. 1995 DIRECTOR OPTION PLAN
INDUS INTERNATIONAL, INC. 1997 DIRECTOR OPTION PLAN
INDUS INTERNATIONAL, INC. 1997 EMPLOYEE STOCK PURCHASE PLAN
INDUS INTERNATIONAL, INC. 1997 STOCK PLAN
TSW INTERNATIONAL, INC. 1984 STOCK OPTION PLAN
TSW INTERNATIONAL, INC. 1994 STOCK OPTION PLAN
TSW INTERNATIONAL, INC. 1995 STOCK OPTION PLAN
FOR OUTSIDE DIRECTORS
TSW INTERNATIONAL CONSULTANTS PLAN
TSW INTERNATIONAL, INC. OPTIONS
(Full title of the Plans)
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ROBERT W. FELTON
Chief Executive Officer
INDUS INTERNATIONAL, INC.
60 Spear Street
San Francisco, CA 94105
(415) 904-5000
(Name, address and telephone number of agent for service)
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Copies to:
HENRY P. MASSEY, JR., ESQ.
Wilson, Sonsini, Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value ("Common 1,146,900 $16.16(3) $ 18,533,904 $ 5,616
Stock"), to be issued under The Indus Group,
Inc. 1995 Stock Plan
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Common Stock to be issued under The Indus 645,185 0.42(3) 270,978 83
Group, Inc. 1992 Stock Option Plan
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Common Stock to be issued under The Indus 15,000 15.33(3) 229,950 70
Group, Inc. 1995 Directors Option Plan
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Common Stock to be issued under Indus 200,000 16.00(2) 3,200,000 970
International, Inc. 1997 Director Option Plan
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Common Stock to be issued under Indus 1,000,000 16.00(2) 16,000,000 4,849
International, Inc. 1997 Employee Stock
Purchase Plan
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Common Stock to be issued under Indus 5,000,000 16.00(2) 80,000,000 24,243
International, Inc. 1997 Stock Plan
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Common Stock to be issued under TSW 804,358 1.11(3) 892,837 271
International, Inc. 1984 Stock Option Plan
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Common Stock to be issued under TSW 2,673,614 3.27(3) 8,742,718 2,649
International, Inc. 1994 Stock Option Plan
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Common Stock to be issued under TSW 36,917 2.71(3) 100,045 31
International, Inc. 1995 Stock Plan for
Outside Directors
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Common Stock to be issued under TSW 54,695 4.20(3) 229,719 70
International 1995 Consultants Option Plan
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Common Stock to be issued under TSW International, Inc. Options (4) 549,046 3.38(3) 1,855,775 562
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TOTAL 12,125,714 $130,055,926 $39,414
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(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement is the number of
shares authorized to be issued under Indus International, Inc. 1997 Director
Option Plan, Indus International, Inc. 1997 Employee Stock Purchase Plan and
Indus International, Inc. 1997 Stock Plan and the number of shares subject
to outstanding options under The Indus Group, Inc. 1992 Stock Option Plan,
The Indus Group, Inc. 1995 Stock Plan, The Indus Group, Inc. 1995 Director
Option Plan, the TSW International, Inc. 1986 Stock Option Plan, the TSW
International, Inc. 1994 Stock Option Plan, TSW International, Inc. 1995
Stock Plan for Outside Directors and the various TSW International, Inc.
options.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act") solely for the purpose of calculating the
total registration fee. Computation based upon the average of the high and
low prices of the Common Stock as reported on the Nasdaq National Market on
September 29, 1997 because the price at which the options to be granted in
the future may be exercised or the price at which shares may be purchased in
the future is not currently determinable.
(3) Weighted average exercise price of options outstanding under applicable
plan.
(4) Represents shares issuable to J. Bartels, J. Oltman and J. Simpson pursuant
to written compensation agreements.
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Information Incorporated by Reference
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The following documents and information heretofore filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Registration Statement on Form S-4 (No. 333-33113)
filed with the Commission on August 17, 1997.
(b) Items 1 and 2 of the Registrant's Registration Statement on Form 8-A
filed on August 18, 1997 pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
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 which indicates that all securities registered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents.
ITEM 4. Description of Securities
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Not Applicable.
ITEM 5. Interests of Named Experts and Counsel
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Not Applicable.
ITEM 6. Indemnification of Directors and Officers
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As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors for monetary damages for breach or
alleged breach of their duty of care. In addition, as permitted by Section 145
of the Delaware General Corporation Law, the Bylaws of Registrant provide that:
(i) the Registrant is required to indemnify its directors and officers and
employees, and persons serving in such capacities in other business enterprises
(including, for example, subsidiaries of the Registrant) at the Registrant's
request, to the fullest extent permitted by Delaware law, including those
circumstances in which indemnification would otherwise be discretionary; (ii)
the Registrant is required to advance expenses, as incurred, to such directors,
officers and employees in connection with defending a
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proceeding (except that it is not required to advance expenses to a person
against whom the Registrant brings a claim for breach of the duty of loyalty,
failure to act in good faith, intentional misconduct, knowing violation of law
or deriving an improper personal benefit); (iii) the rights conferred in the
Bylaws are not exclusive and the Registrant is authorized to enter into
indemnification agreements with its directors, officers and employees; and (iv)
the Registrant is required to maintain director and officer liability insurance
to the extent reasonably available; and (v) the Registrant may not retroactively
amend the Bylaw provisions in a way that is adverse to such directors, officers
and employees.
The Registrant has entered into indemnity agreements with each of its
executive officers and directors that provide the maximum indemnity allowed to
officers and directors by Section 145 of the Delaware General Corporation Law
and the Bylaws, as well as certain additional procedural protections. In
addition, the indemnity agreements provide that officers and directors will be
indemnified to the fullest possible extent not prohibited by law against all
expenses (including attorney's fees) and settlement amounts paid or incurred by
them in any action or proceeding, including any derivative action by or in the
right of the Registrant, on account of their services as directors or officers
of the Registrant or as directors or officers of any other company or enterprise
when they are serving in such capacities at the request of the Registrant. No
indemnity will be provided, however, to any director or officer on account of
conduct that is adjudicated to be knowingly fraudulent, deliberately dishonest
or willful misconduct. The indemnity agreements also provide that no
indemnification will be available if a final court adjudication determines that
such indemnification is not lawful, or in respect of any accounting of profits
made from the purchase or sale of securities of the Registrant in violation of
Section 16(b) of the Exchange Act.
The indemnification provision in the Bylaws, and the indemnity agreements
to be entered into between the Registrant and its officers and directors, may be
sufficiently broad to permit indemnification of the Registrant's officers and
directors for liability arising under the Securities Act.
Pursuant to covenants in the Reorganization Agreement between Registrant,
TSW International, Inc. and The Indus Group, Inc., the Registrant is required to
maintain indemnification provisions in the charter of documents of those
entities which are identical to the indemnification provisions which existed in
the charter documents of those entities prior to their becoming subsidiaries of
the Registrant. In addition, Registrant is required to maintain director and
officer liability insurance with coverages, which are similar to the coverages
maintained by those entities prior to their becoming subsidiaries of the
Registrant.
The Registrant maintains director and officer liability insurance.
ITEM 7. Exemption From Registration Claimed
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Not Applicable.
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ITEM 8. Exhibits
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4.1 Certificate of Incorporation of Registrant (incorporated by
reference to Exhibit 3.1 of Registrant's Registration Statement on
Form S-4, No. 333-33113)
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as to
legality of securities being registered.
23.1 Consent of Independent Auditors (see Page II-6).
23.2 Consent of Independent Auditors (see Page II-7).
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-5).
ITEM 9. UNDERTAKINGS
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(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 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 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 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.
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(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 California General Corporations Code, the Restated
Articles of Incorporation of the Registrant, the Bylaws of the Registrant,
Indemnification Agreements entered into between the Registrant and its officers
and directors, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Indus International, Inc, a corporation organized and existing under the laws of
the State of Delaware, 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 Francisco, State of California, on this 30th
day of September, 1997.
THE INDUS GROUP, INC.
By: /s/ Robert W. Felton
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Robert W. Felton
Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert W. Felton and Richard W. Mac
Almon, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said attorneys-in-
fact, or his substitute or substitutes, may 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 by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Robert W. Felton Chief Executive Officer and Director September 30, 1997
- -------------------------- (Principal Executive Officer)
(Robert W. Felton)
/s/ Frank M. Siskowski Chief Financial Officer and September 12, 1997
- -------------------------- Executive Vice President of
(Frank M. Siskowski) Investor Relations
(Principal Financing and
Accounting Officer)
/s/ John W. Blend, III Director September 12, 1997
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(John W. Blend, III)
- -------------------------- Director September ___, 1997
(Christopher R. Lane)
/s/ William Janeway Director September 12, 1997
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(William Janeway)
/s/ Edward R. Koepfler Director September 12, 1997
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(Edward R. Koepfler)
/s/ Joseph P. Landy Director September 30, 1997
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(Joseph P. Landy)
/s/ Richard W. Mac Almon Director September 30, 1997
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(Richard W. Mac Almon)
/s/ Alan G. Merten Director September 15, 1997
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(Alan G. Merten)
</TABLE>
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated January 24, 1997 with respect to the financial
statements of The Indus Group, Inc. included in the Registration Statement on
Form S-4 (No. 333-33113) of Indus International, Inc. filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
September 27, 1997
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated April 18, 1997 with respect to the financial
statements of TSW International, Inc. included in Indus International, Inc.'s
Registration Statement Form S-4 (No. 333-33113) of Indus International, Inc.
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Atlanta, Georgia
September 27, 1997
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit Page
Number No.
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<S> <C>
4.1* Indus International, Inc. Certificate of Incorporation
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, Professional
Corporation, as to legality of securities being registered.
23.1 Consent of Independent Auditors (see Page II-6).
23.2 Consent of Independent Auditors (see Page II-7).
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-5).
*Incorporated by reference
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EXHIBIT 5.1
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October 1, 1997
Indus International, Inc.
60 Spear Street
San Francisco, Ca 94105
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Indus International, Inc. (the "Company") with the Securities and Exchange
Commission on or about October 1, 1997 (the "Registration Statement") in
connection with the registration under the Securities Act of 1933, as amended,
of 12,125,174 shares of Common Stock (the "Shares") reserved for issuance
under The Indus Group, Inc. 1992 Stock Option Plan, The Indus Group, Inc. 1995
Stock Plan, The Indus Group, Inc. 1995 Director Option Plan, Indus
International, Inc. 1997 Director Option Plan, Indus International, Inc. 1997
Employee Stock Purchase Plan, Indus International, Inc. 1997 Stock Plan, TSW
International, Inc. 1984 Stock Option Plan, TSW International, Inc. 1994 Stock
Option Plan, TSW International, Inc. 1995 Stock Option Plan, for Outside
Directors, TSW International Consultants Plan, and various TSW International,
Inc. options (collectively, the "Plans"). As your counsel, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with said issuance and sale of the Shares pursuant to the
Plans.
It is our opinion that, upon completion of the proceedings being taken or
contemplated by us to be taken prior to the issuance and sale of the Shares
pursuant to the Plans, and upon completion of the proceedings being taken in
order to permit such transaction to be carried out in accordance with the
securities laws of the various states where required, the Shares, when issued
and sold in the manner referred to in the Plans and the Registration Statement,
will be legally and validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
