As filed with the Securities and Exchange Commission on June 30, 1995
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
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REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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BGS SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2559993
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation)
128 TECHNOLOGY CENTER, WALTHAM, MASSACHUSETTS 02254-9111
(Address of Principal Executive Office)
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1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
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C. Russel Hansen, Jr.
Vice President and General Counsel
BGS Systems, Inc.
128 Technology Center
Waltham, Massachusetts 02254-9111
(617) 891-0000
(Name, address and telephone number of Agent for Service)
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CALCULATION OF REGISTRATION FEE
Title of each
class of Proposed maximum Proposed maxi- Amount of
securities to Amount to be offering price mum aggregate Registra-
be registered registered per share offering price tion fee
- ------------- ----------- ---------------- --------------- ----------
Common Stock, 30,000 $31.94* $958,200* $330.41
$0.10 par value shares
*Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h) and based upon the average of the high and low
sale prices on June 27, 1995, as reported by The Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) All other reports of the Registrant filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
annual report referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in its
Registration Statement on Form S-1 (File No. 2-83449) filed on May 2, 1983,
including any amendment or report filed with the purpose of updating such
description.
All documents filed after the date of this Registration Statement by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
and prior to the filing of a post-effective amendment which indicates that all
shares of Common Stock offered hereunder have been sold or which deregisters
all shares of Common Stock remaining unsold shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the filing of such
reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock offered hereby will be passed upon for the
Registrant by C. Russel Hansen, Jr., Vice President and General Counsel.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 5 of the Corporation's By-Laws provides that the Corporation shall, to
the fullest extent authorized by Chapter 156B of the Massachusetts General
Laws, as the same exists or may hereafter be amended (in the case of any such
amendment, only to the extent that such amendment either (i) permits the
Corporation to provide broader indemnification rights than such laws permitted
prior to such amendment or (ii) prohibits or limits any of the indemnification
rights previously set forth in such laws, indemnify each person who is, or
shall have been, a director or officer of the Corporation or who is or was a
director or employee of the Corporation and is serving, or shall have served,
at the request of the Corporation, as director or officer of another
organization or in any capacity with respect to any employee benefit plan of
the Corporation, against all liabilities and expenses (including judgments,
fines, penalties, amounts paid or to be paid in settlement, and reasonable
attorneys' fees) imposed upon or incurred by any such person (the "Indemnitee")
in connection with, or arising out of, the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, in which he may be
a defendant or with which he may be threatened or otherwise involved, directly
or indirectly, by reason of his being or having been such a director or officer
or as a result of his serving or having served with respect to any such
employee benefit plan. The Corporation, however, shall provide no
indemnification with respect to any matter as to which any Indemnitee shall be
finally adjudicated in such action, suit or proceeding not to have acted in
good faith in the reasonable belief that his action was (i) in the best
interests of the Corporation or (ii) to the extent such matter relates to
service with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
The Corporation provides indemnification with respect to any settled or
compromised matter unless such settlement or compromise shall have been
determined by a disinterested majority of the Corporation's Board of Directors
(or, if there are fewer than two disinterested directors, then by the
Corporation's independent legal counsel) not to have been in the best interests
of the Corporation or benefit plan as the case may be.
The right of indemnification includes the right to be paid by the Corporation
for expenses incurred in defending a civil or criminal action, suit or
proceeding in advance of its final disposition, subject to an undertaking by
the Indemnitee to repay such payment if it is ultimately determined that the
Indemnitee is not entitled to indemnification. No advance is to be made by the
Corporation, however, if a determination is reasonably and promptly made by a
disinterested majority of the Corporation's Board of Directors (or if there are
fewer than two disinterested directors, then by the Corporation's independent
legal counsel) that such Indemnitee did not act in good faith in the reasonable
belief that his action was in the best interests of the Corporation or benefit
plan, as the case may be.
The right to indemnification and the payment of expenses incurred in defending
any action, suit or proceeding in advance of its final disposition conferred in
the By-Laws is not exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Articles of Organization,
By-Laws, agreement, vote of stockholders or directors or otherwise. The
Corporation, acting through its Board of Directors, may enter into agreements
with any director, officer, employee or agent of the Corporation providing for
indemnification rights equivalent to or greater than the indemnification rights
set forth in the By-Laws.
The Corporation may purchase and maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another organization or employee benefit plan against any expense or liability
incurred by him in any such capacity, or arising out of the status as such,
whether or not the Corporation would have the power to indemnify such person
against such expense or liability under Chapter 156B of the Massachusetts
General Laws.
Without the consent of a person entitled to the indemnification and other
rights provided in the By-Laws (unless otherwise required by Chapter 156B of
the Massachusetts General Laws), no amendment modifying or terminating such
rights shall adversely affect such person's rights under the By-Laws with
respect to the period prior to such amendment.
If the Corporation is merged into or consolidated with another corporation and
the Corporation is not the surviving corporation, or if substantially all of
the assets of the Corporation are acquired by any other corporation, or in the
event of any other similar reorganization involving the Corporation, the Board
of Directors of the Corporation or the board of directors of any corporation
assuming the obligations of the Corporation shall assume the obligations of the
Corporation under the By-Laws, through the date of such merger, consolidation
or reorganization with respect to each person who is entitled to
indemnification rights under the By-Laws as of such date.
If Article 5 of the Corporation's By-Laws or any portion thereof is invalidated
on any grounds by any court of competent jurisdiction, the Corporation shall
nevertheless indemnify each Indemnitee as to any liabilities and expenses with
respect to any action, suit or proceeding that shall not have been invalidated
to the fullest extent permitted by that Article and applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
ITEM 8. EXHIBITS. See Exhibit Index.
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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment thereof) which individually or in the aggregate, represents
a fundamental change in the information set forth in this 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 9 (a)(1)(i) and (a)(1)(ii) do not apply if 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 Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this 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.
(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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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 of 1933 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 defenses 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.
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 Waltham, Commonwealth of Massachusetts, on this
28th day of June 1995.
BGS SYSTEMS, INC.
(Registrant)
By: C. RUSSEL HANSEN, JR. FOR
Harold S. Schwenk, Jr.
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated on this 28th day of June, 1995.
Signature Capacity
By: /S/ C. RUSSEL HANSEN, JR. FOR President, Chief Executive Officer
Harold S. Schwenk, Jr. and Director
By: /S/ NORMAND BILODEAU Chief Financial Officer
Normand Bilodeau
By: /S/ C. RUSSEL HANSEN, JR. FOR Director
Jeffrey P. Buzen
By: /S/ C. RUSSEL HANSEN, JR. FOR Director
Paul R. Duncan
By: /S/ C. RUSSEL HANSEN, JR. FOR Director
Judith N. Goldberg
<PAGE>
INDEX TO EXHIBITS
4.1 Articles of Organization, as amended. (Incorporated
by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form 2-1 filed with the Securities and Exchange
Commission on May 2, 1983, File No. 2-93449 ("Form S-1") and
Exhibit A to the Registrant's Proxy Statement dated May 22,
1987).
4.2 By-Laws, as amended. (Incorporated by reference to Exhibit
3.2 to Registrant's Form 10-K for the year ended January 31,
1995).
5 Opinion of C. Russel Hansen, Jr. (filed herewith).
23.1 Consent of C. Russel Hansen, Jr. (contained in Opinion of C.
Russel Hansen, Jr. filed as Exhibit 5).
23.2 Consent of Ernst & Young LLP, Independent Auditors (filed
herewith).
24 Powers of Attorney (Incorporated by reference to Exhibit 24
to Registrant's Form 10-K (Commission File No. 0-12192) for the
year ended January 31, 1995).
99 BGS Systems, Inc. 1995 Employee Stock Purchase Plan
(Incorporated by reference to Exhibit A to the Registrant's
Proxy Statement dated June 13, 1995).
EXHIBIT 5
June 28, 1995
BGS Systems, Inc.
128 Technology Center
Waltham, MA 02254-9111
Gentlemen:
On your behalf, I have prepared a Registration Statement on Form S-8 (the
"Registration Statement") for filing with the Securities and Exchange
Commission relating to shares of the common stock, $.10 par value per share
("Common Stock"), of BGS Systems, Inc., a Massachusetts corporation (the
"Company"), issuable under the Company's 1995 Employee Stock Purchase Plan (the
"Plan").
I have examined the Articles of Organization of the Company and all
amendments thereto in the office of the Secretary of State of Massachusetts,
all pertinent records of the meetings of the directors and stockholders of the
Company, the Registration Statement and such other documents relating to the
Company as I have deemed material for the purposes of this opinion.
Based upon the foregoing, it is my opinion that the Company has duly
authorized for issuance the shares of Common Stock covered by the Registration
Statement to be issued under the Plan, as described in the Registration
Statement, and such shares, when issued in accordance with the terms of the
Plan, will be legally issued, fully paid and non-assessable.
I hereby consent to the use of my name in the Registration Statement and the
filing of this opinion with the Securities and Exchange Commission in
connection with the Registration Statement.
Sincerely,
/S/ C. RUSSEL HANSEN, JR.
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Vice President and General Counsel
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1995 Employee Stock Purchase Plan
of BGS Systems, Inc. of our report dated March 15, 1995, with respect to
the consolidated financial statements of BGS Systems, Inc. incorporated
by reference in its Annual Report (Form 10-K) for the year ended January
31, 1995 and the related financial statement schedule included therein,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
June 28, 1995
