<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 1998
REGISTRATION NO. 333-50645
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SECURITIES AND EXCHANGE COMMISSION
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SOFTWARE AG SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 5734 54-1167173
(STATE OF INCORPORATION)
(PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
11190 SUNRISE VALLEY DRIVE
RESTON, VA 20191
(703) 860-5050
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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DANIEL F. GILLIS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
11190 SUNRISE VALLEY DRIVE
RESTON, VA 20191
(703) 860-5050
(NAME AND ADDRESS OF AGENT FOR SERVICE)
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COPIES TO:
ROBERT B. OTT, ESQ. PETER B. TARR, ESQ.
RICHARD E. BALTZ, ESQ. BRENT B. SILER, ESQ.
ARNOLD & PORTER HALE AND DORR LLP
555 TWELFTH STREET, N.W. 1455 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, D.C. 20004 WASHINGTON, D.C.
(202) 942-5000 (202) 942-8400
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APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES 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, 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. [_]
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 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 following are the estimated expenses in connection with the issuance and
distribution of the securities being registered, all of which will be paid by
the Company.
<TABLE>
<S> <C>
SEC registration fee............................................... $ 50,830
NASD filing fee.................................................... $ 17,730
Blue Sky fees and expenses......................................... $ 10,000
Printing and engraving expenses.................................... 200,000
Legal fees and expenses............................................ 75,000
Accounting fees and expenses....................................... 45,000
Transfer agent and registrar fees.................................. 2,500
Miscellaneous...................................................... 25,940
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Total............................................................ $427,000
========
</TABLE>
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law sets forth conditions
and limitations governing the indemnification of officers and directors of the
Company and certain other persons. The Company has adopted provisions in its
Second Amended and Restated Certificate of Incorporation and Third Amended and
Restated Bylaws which provide for indemnification of its officers and
directors to the maximum extent permitted under the Delaware General
Corporation Law.
As authorized by the Delaware General Corporation Law, the Company's Second
Amended and Restated Certificate of Incorporation limits the liability of
directors of the Company for monetary damages. The effect of this provision is
to eliminate the rights of the Company and its stockholders (through
stockholders' derivative suits on behalf of the Company) to recover monetary
damages against a director for breach of the fiduciary duty of care as a
director (including breaches resulting from negligent or grossly negligent
behavior) except in certain limited situations. This provision does not limit
or eliminate the rights of the Company or any stockholder to seek non-monetary
relief such as an injunction or rescission in the event of breach of a
director's duty of care. These provisions will not alter the liability of
directors under federal securities laws.
The Company has purchased an insurance policy which purports to insure the
officers and directors of the Company against certain liabilities incurred by
them in the discharge of their functions as such officers and directors except
for liabilities resulting from their own malfeasance. Under the terms of the
Underwriting Agreement, the Underwriters have agreed to indemnify, under
certain conditions, the Company, its directors, certain of its officers and
persons who control the Company within the meaning of the Securities Act
against certain civil liabilities and liabilities arising from breaches of
representations and warranties contained in the Underwriting Agreement or the
inaccuracy of certain information set forth herein that was provided by the
Underwriters.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Prior to February 25, 1997, the Company was an indirect wholly owned
subsidiary of SAG and on February 25, 1997, the Company became a direct wholly
owned subsidiary of SAG and SAG became the owner of the one then outstanding
share of the Company's common stock, par value $1.00 per share. On March 14,
1997, the Company issued a stock dividend to SAG resulting in 100,000
outstanding shares of common stock.
On March 31, 1997, the senior management of the Company and Thayer acquired
approximately 89% of the then outstanding Common Stock of the Company in the
Recapitalization pursuant to an agreement among the Company, SAG, Thayer and
the following persons who constituted the senior managers of the Company at
II-1
<PAGE>
that time: Daniel F. Gillis, Harry K. McCreery, Gary Hayes, James H. Daly,
Derek M. Brigden and Thomas E. Gorley (collectively, such individuals are
referred to as the "Managers"). In connection therewith, (i) 24,750,000 shares
of Common Stock were repurchased by the Company from SAG for an aggregate
purchase price of DM 57.0 million (approximately US$33.9 million), (ii)
20,678,350 shares of Common Stock were issued and sold to Thayer for an
aggregate purchase price of approximately $30.4 million and (iii) an aggregate
of 771,650 shares of Common Stock were issued and sold to the Managers for an
aggregate purchase price of approximately $1.1 million. Of the Common Stock
purchased by the Managers, Messrs. Gillis and McCreery each purchased 204,050
shares and Messrs. Hayes, Daly, Brigden and Gorley purchased 84,975, 108,625,
67,925 and 102,025 shares, respectively. In consideration for the shares, each
of Messrs. Gillis, McCreery and Daly gave the Company a promissory note in an
amount sufficient to cover the purchase price of the shares. In consideration
for the shares, each of Messrs. Hayes, Brigden and Gorley paid the Company
approximately $74,900, $51,000, and $75,000 in cash, respectively, and gave
the Company a promissory note in an amount sufficient to cover the balance of
the purchase price of the shares. In addition, on August 22, 1997 the Company
entered into a subscription agreement with Timothy L. Hill, the Company's Vice
President--Marketing, pursuant to which the Company issued and sold to Mr.
Hill 137,500 shares of Common Stock for an aggregate purchase price of
$202,095. All such shares of Common Stock were issued in private placements
exempt from registration under Section 4(2) of the Securities Act. No
underwriters were involved in the sales or issuances of the securities
described above.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
An index to exhibits appears on page E-1.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (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 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 of 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities 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 registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
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.
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<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT NO. 1 TO REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN RESTON, VIRGINIA ON
MAY 19, 1998.
Software AG Systems, Inc.
/s/ Daniel F. Gillis
By: ----------------------------------
DANIEL F. GILLIS
DIRECTOR, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS AMENDMENT NO. 1 TO
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON MAY 19, 1998.
/s/ Daniel F. Gillis
By: ----------------------------------
DANIEL F. GILLIS
DIRECTOR, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
(PRINCIPAL EXECUTIVE OFFICER)
/s/ Harry K. McCreery
By: ----------------------------------
HARRY K. MCCREERY
VICE PRESIDENT, TREASURER AND
CHIEF FINANCIAL OFFICER
(PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER)
*
By: ----------------------------------
CARL J. RICKERTSEN
CHAIRMAN OF THE BOARD OF DIRECTORS
*
By: ----------------------------------
DR. PHILIP S. DAUBER
DIRECTOR
*
By: ----------------------------------
DR. ERWIN KONIGS
DIRECTOR
*
By: ----------------------------------
EDWARD E. LUCENTE
DIRECTOR
*
By: ----------------------------------
DR. PAUL G. STERN
DIRECTOR
/s/ Harry K. McCreery
*By: -----------------------------
HARRY K. MCCREERY
ATTORNEY-IN-FACT
II-3
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO.
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<C> <S>
***1 Form of Underwriting Agreement
* 3.1 Second Amended and Restated Certificate of Incorporation of the
Registrant
*** 3.2 Third Amended and Restated Bylaws of the Registrant
* 4 Specimen Common Stock Certificate of the Registrant
****5 Opinion of Arnold & Porter regarding the legality of the shares of
Common Stock being registered
*10.1 Recapitalization Agreement among Software AG, Software AG Systems,
Inc., Thayer Equity Investors III, L.P. and certain Managers of
Software AG Systems, Inc. (dated as of March 18, 1997)
*10.2 Cooperation Agreement between Software AG and Software AG Americas,
Inc. (dated as of March 31, 1997)
*10.3 Share Purchase Agreement among Software AG Americas, Inc., Software
AG (Canada), Inc., Robert D. Nickel and Caelum Investments, Inc.
(dated as of September 26, 1997)
*10.4 Memorandum of Understanding between Daniel F. Gillis and Software AG
Systems, Inc. (dated as of April 24, 1997)
*10.5 Memorandum of Understanding between Harry K. McCreery and Software AG
Americas, Inc. (dated as of December 16, 1996)
*10.6 Memorandum of Understanding between Derek M. Brigden and Software AG
Americas, Inc. (dated as of December 13, 1996)
*10.7 Memorandum of Understanding between James H. Daly and Software AG
Americas, Inc. (dated as of December 18, 1996)
*10.8 Memorandum of Understanding between Thomas E. Gorley and Software AG
Americas, Inc. (dated as of August 22, 1996)
**10.9 Software AG Systems, Inc. 1997 Stock Option Plan, as amended
*10.10 Management and Consulting Agreement between TC Management LLC and
Software AG Americas, Inc. (dated as of April 1, 1997)
*10.11 Deferred Compensation Agreement between Daniel F. Gillis and Software
AG Americas, Inc. (dated as of July 1, 1995), as amended
*10.12 Deferred Compensation Agreement between James H. Daly and Software AG
Americas, Inc. (dated as of January 1, 1993), as amended
*10.13 Deferred Compensation Agreement between Harry K. McCreery and
Software AG Americas, Inc. (dated as of January 1, 1991), as amended
*10.14 Administrative Services Agreement between Software AG and Software AG
Americas, Inc. (dated as of March 31, 1997), as amended
*10.15 Registration Rights Agreement between Software AG Systems, Inc. and
Thayer Equity Investors III, L.P. (dated as of September 26, 1997)
*10.16 Subscription Agreement between Timothy L. Hill and Software AG
Systems, Inc. (dated as of August 22, 1997), as amended
*10.17 Shareholders Agreement among Software AG Systems, Inc., Thayer Equity
Investors III, L.P. and certain shareholders of Software AG Systems,
Inc. (dated as of April 1, 1997)
*10.18 Promissory Note made by Daniel F. Gillis (effective date March 24,
1997)
*10.19 Promissory Note made by Harry K. McCreery (effective date March 24,
1997)
*10.20 Promissory Note made by James H. Daly (effective date March 24, 1997)
*10.21 Promissory Note made by Harry K. McCreery (effective date August 9,
1996)
*10.22 Promissory Note made by James H. Daly (effective date August 9, 1996)
***11 Computations of Earnings per Share
***21 Subsidiaries of the Registrant
****23.1 Consent of Arnold & Porter (included in its opinion filed as Exhibit
5)
****23.2 Consent of KPMG Peat Marwick LLP
***24 Powers of Attorney
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* Previously filed as an exhibit to the Company's Registration Statement
on Form S-1 (File No. 333-36567) and incorporated herein by reference.
** Previously filed as an exhibit to the Company's Registration Statement
on Form S-8 (File No. 333-44687) and incorporated herein by reference.
*** Previously filed.
**** Filed herewith.
<PAGE>
EXHIBIT 5
May 19, 1998
Board of Directors.
Software AG Systems, Inc.
11190 Sunrise Valley Drive
Reston, VA 20191
Re: Software AG Systems, Inc.
Registration Statement on Form S-1
File No. 333-50645
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Ladies and Gentlemen:
We have acted as special counsel to Software AG Systems, Inc., a Delaware
corporation (the "Company"), in connection with the Company's filing with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "1933 Act"), of the referenced registration statement on Form S-1
(the "Registration Statement") relating to the proposed offer and sale of (i)
5,074,150 shares (5,893,181 shares if the Underwriters' over-allotment option is
fully exercised) (the "Primary Shares") of the Company's common stock, par value
$.01 per share (the "Common Stock"), and (ii) 386,062 shares of Common Stock
(the "Option Shares") that are being offered for sale pursuant to the exercise
by certain stockholders of the Company of outstanding stock options granted
under the Company's 1997 Stock Option Plan (the "Plan"). This opinion is
furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S) 229.601(b)(5), in connection
with the Registration Statement.
For purposes of this opinion, we have examined such corporate records of
the Company, including executed copies of the Registration Statement and
Amendment No. 1 thereto, the Company's First Amended and Restated Certificate of
Incorporation, the Company's Second Amended and Restated Certificate of
Incorporation, the Company's Third Amended and Restated Bylaws, resolutions of
the Company's Board of Directors, the Compensation Committee thereof and the
stockholders of the Company (including resolutions relating to the original
issuance and sale of the Primary Shares and resolutions relating to the adoption
of the Plan and the granting of stock options under the Plan covering the Option
Shares) and the proposed form of underwriting agreement by and among the
Company, the Selling Stockholders, BancAmerica Robertson Stephens, Donaldson,
Lufkin & Jenrette Securities Corporation, Smith Barney Inc. and EVEREN
Securities, Inc., filed as Exhibit 1 to the Registration Statement (the
"Underwriting Agreement"), and such other documents as we deem necessary for
rendering the opinion hereafter expressed.
<PAGE>
Software AG Systems, Inc.
May 19, 1998
Page 2
In our examination of the aforesaid documents, we assumed the genuineness
of all signatures, the legal capacity of all natural persons, the accuracy and
completeness of all documents submitted to us, the authenticity of all original
documents and the conformity to authentic original documents of all documents
submitted to us as copies (including telecopies). We also have assumed the
accuracy, completeness and authenticity of statements of fact on which we are
relying and have made no independent investigations thereof. This opinion is
given, and all statements herein are made, in the context of the foregoing.
This opinion is based as to matters of law solely on the General
Corporation Law of the State of Delaware. We express no opinion herein as to
any other laws, statutes, regulations or ordinances.
Based upon, subject to and limited by the foregoing, we are of the
opinion that:
(a) the Primary Shares are validly issued, fully paid and nonassessable
under the General Corporation Law of the State of Delaware; and
(b) the Option Shares have been duly authorized by the Company, and (i)
following the sale of the Option Shares pursuant to the terms of the
Underwriting Agreement and (ii) upon issuance pursuant to the terms
of the Plan, such Option Shares will be validly issued, fully paid
and nonassessable under the General Corporation Law of the State of
Delaware.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus constituting a part of the Registration
Statement. In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the 1933 Act.
Sincerely yours,
/s/ Arnold & Porter
Arnold & Porter
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EXHIBIT 23.2
ACCOUNTANTS' CONSENT
We consent to the use of our reports included herein and to the reference to
our firm under the headings "Selected Consolidated Financial Data" and
"Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
Washington, D.C.
May 19, 1998
