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Registration No. 333-_____
As filed with the Securities and Exchange Commission on September 30, 1997
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------------------
SYSTEM SOFTWARE ASSOCIATES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3144515
(State or other Jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
500 West Madison Street, Suite 3200 (312) 641-2900
Chicago, Illinois 60661 (Telephone number, including
(Address, Including Zip Code, of area code, of registrant's
registrant's principal executive offices) principal executive offices)
SYSTEM SOFTWARE ASSOCIATES, INC.
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
AND
SYSTEM SOFTWARE ASSOCIATES, INC.
EMPLOYEE STOCK PURCHASE PLAN
Mr. Joseph J. Skadra
Chief Financial Officer
System Software Associates, Inc.
500 West Madison Street - Suite 3200
Chicago, Illinois 60661
(312) 641-2900
(Name, address, including zip code and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each Amount to be Proposed maximum Proposed maximum Amount of registration
class of securities registered(2) offering price per aggregate offering fee(3)
to be registered(1) share(3) price(3)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 2,000,000 $15.625 $31,250,000 $9,470
$.0033 per share
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plans described herein.
(2) This Registration Statement includes any additional shares of the
registrant's Common Stock that may be issued pursuant to antidilution provisions
contained in the plans.
(3) Pursuant to Rule 457(h), the registration fee was computed on the basis of
the average of the high and low prices of the registrant's Common Stock on the
NASDAQ National Market on September 23, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by System
Software Associates, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission"), are incorporated by reference in this
Registration Statement, except to the extent that any statement or information
therein is modified, superseded or replaced by a statement or information
contained in any other subsequently filed document incorporated herein by
reference:
i. the Company's Annual Report on Form 10-K for the year ended October
31, 1996, as amended;
ii. the Company's Quarterly Reports on Form 10-Q for the quarters ended
January 31, 1997, April 30, 1997 and July 31, 1997;
iii. the Company's Proxy Statement for the Annual Meeting of Stockholders
held on May 28, 1997;
iv. the Company's Current Reports on Form 8-K filed November 8, 1996,
November 15, 1996, November 19, 1996, December 11, 1996, January 10,
1997, April 30, 1997, July 15, 1997, August 14, 1997 and August 21,
1997;
v. the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, declared effective
February 12, 1987; and
vi. the description of the Company's Common Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A, filed
May 18, 1988.
All documents filed by the Company or the plans pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The By-laws of the registrant provide that the registrant shall indemnify
its officers and directors to the fullest extent permitted by applicable law.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides, in
general, that each director and officer of a corporation may be indemnified
against expenses (including attorneys' fees, judgments, fines and amounts paid
in settlement) actually and reasonably incurred in connection with the defense
or settlement of any threatened, pending or completed legal proceedings in which
he is involved by reason of the fact that he is or was a director or officer if
he acted in good faith and in a manner that he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, if he had no reasonable cause to believe that his
conduct was unlawful. If the legal proceeding, however, is by or in the right
of the corporation, the director or officer may not be indemnified in respect of
any claim, issue or matter as to which he shall have been adjudged to be liable
for negligence or misconduct in the performance of his duty to the company
unless a court determines otherwise.
The Certificate of Incorporation of the registrant, as amended to date,
provides that the personal liability of the directors of the registrant shall be
eliminated to the fullest extent permitted by applicable law. The DGCL permits
a corporation's certificate of incorporation to provide that no director of the
corporation shall be personally liable to the corporation or its stockholders
for monetary damages for any breach of his fiduciary duty as a director;
provided, however, that such provision shall not apply to any liability of a
director (1) for any breach of a director's duty of loyalty to the corporation
or its stockholders, (2) for acts or omissions that are not in good faith or
involve intentional misconduct or a knowing violation of the law, (3) under
Section 174 of the DGCL or (4) for any transaction from which the director
derived an improper personal benefit.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index which is incorporated herein by reference.
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:
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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 of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act and each filing of the plans' 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 officers, directors, and
controlling persons of the registrant pursuant to the registrant's
certificate of incorporation or by-laws, or otherwise, the registrant
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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
The Registrant. 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 Chicago, State of Illinois, on the 29th day of
September, 1997.
System Software Associates, Inc.
By: /s/ Joseph J. Skadra
----------------------------------
Joseph J. Skadra, Vice President
and Chief Financial Officer
4
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Joseph J. Skadra and William N. Weaver, Jr., and
each of them singly, 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 (including his capacity as a director and
officer of System Software Associates) to sign any and all amendments (including
post-effective amendments) 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 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 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 thereof.
IN WITNESS WHEREOF, the undersigned have executed this power of attorney on
the 29th day of September, 1997.
/s/ Roger E. Covey /s/ John W. Puth
- ------------------------- ----------------------------
Roger E. Covey John W. Puth
/s/ Joseph J. Skadra /s/ William N. Weaver, Jr.
- ------------------------- ----------------------------
Joseph J. Skadra William N. Weaver, Jr.
/s/ Andrew J. Filipowski
- -------------------------
Andrew J. Filipowski
5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in their
respective capacities on this 29th day of September, 1997.
Signature Title
- --------- -----
/s/ Roger E. Covey
- ------------------------
Roger E. Covey Chief Executive Officer and Chairman of the
Board of Directors (Principal Executive
Officer)
/s/ Joseph J. Skadra
- ------------------------
Joseph J. Skadra Chief Financial Officer, Vice President -
Finance (Principal Financial and
Accounting Officer)
/s/ Andrew J. Filipowski
- ------------------------
Andrew J. Filipowski Director
/s/ John W. Puth
- ------------------------
John W. Puth Director
/s/ William N. Weaver, Jr.
- ------------------------
William N. Weaver, Jr. Director
6
<PAGE>
The Plans. Pursuant to the requirements of the Securities Act of 1933, the
System Software Associates, Inc. Qualified Employee Stock Purchase Plan and the
System Software Associates, Inc. Employee Stock Purchase Plan have duly caused
this registration statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Chicago, State of Illinois, on the
29th day of September, 1997.
System Software Associates, Inc.
By: /s/ Joseph J. Skadra
---------------------------------
Joseph J. Skadra
Chief Financial Officer and
Vice President - Finance
Its: Plan Administrator
7
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- ----------------------
<C> <S>
4.1 Certificate of Incorporation of System Software
Associates, as amended to date*
4.2 By-Laws of System Software Associates, as amended to date**
4.3 Rights Agreement dated as of May 3, 1988***
4.4 System Software Associates, Inc. Qualified Employee Stock
Purchase Plan
4.5 System Software Associates, Inc. Employee Stock Purchase
Plan
5 Opinion of Sachnoff & Weaver, Ltd.
23.1 Consent of Price Waterhouse LLP
23.2 Consent of KPMG Peat Marwick LLP
24 Powers of Attorney (contained on the signature page hereto)
</TABLE>
____________________
* Incorporated by reference from the Company's Annual Report on Form 10-K for
the fiscal year ended October 31, 1987 (File No. 0-15322).
** Incorporated by reference from the Company's Annual Report on Form 10-K for
the fiscal year ended October 31, 1989 (File No. 0-15322).
*** Incorporated by reference from the Company's Form 8-K Current Report filed
May 18, 1988 (File No. 0-15322).
8
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EXHIBIT 4.4
SYSTEM SOFTWARE ASSOCIATES, INC.
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
The purpose of the System Software Associates, Inc. Qualified Employee
Stock Purchase Plan is to provide eligible Employees of System Software
Associates, Inc. and its Affiliates with an opportunity to acquire a proprietary
interest in the Company through the purchase of Common Stock of the Company on a
payroll deduction basis. It is believed that participation in the ownership of
the Company will be to the mutual benefit of the eligible Employees and the
Company. It is intended that this Plan shall constitute an "employee stock
purchase plan" within the meaning of Section 423 of the Internal Revenue Code of
1986, as amended. The provisions of the Plan shall, accordingly, be construed so
as to extend and limit participation in a manner consistent with the
requirements of Code Section 423.
2. DEFINITIONS
Unless otherwise specified or unless the context otherwise requires, the
following terms, as used in this Plan, have the following meanings. Wherever
appropriate, words used in the singular shall be deemed to include the plural
and vice versa, and the masculine gender shall be deemed to include the feminine
gender.
(a) Account means the funds accumulated with respect to an Employee as a
result of deductions from his paycheck for the purpose of purchasing Common
Stock under the Plan. The funds allocated to an Employee's Account shall
remain the property of the Employee at all times prior to the purchase of
the Common Stock, but may be commingled with the assets of the Company and
used for general corporate purposes. No interest shall be paid or accrued
on any funds accumulated in the Accounts of Employees.
(b) Affiliate means a corporation, as defined in Section 424(f) of the
Code, that is a parent or subsidiary of the Company, direct or indirect.
(c) Board means the Board of Directors of the Company.
(d) Code means the Internal Revenue Code of 1986, as amended.
(e) Committee means the committee to which the Board delegates the power
to act under or pursuant to the provisions of the Plan, or the Board if no
committee is selected.
(f) Common Stock means the shares of common stock of the Company, $.01 par
value.
<PAGE>
(g) Company means System Software Associates, Inc., a Delaware
corporation, and any corporate successor to all or substantially all of the
assets or voting stock of the Company.
(h) Compensation means the compensation paid to an Employee by the Company
during a payroll period for federal income tax purposes, as reported on an
Employee's Form W-2 (or comparable reporting form) for income tax
withholding purposes.
(i) Effective Date means the date the Plan is adopted by, and made
effective by, the Board, subject to the limitations of Section 16.
(j) Employee means any person who is employed by the Company or an
Affiliate.
(k) Offering Date means the date on which the Committee grants Employees
the option to purchase shares of Common Stock.
(l) Offering Period means the period between the Offering Date and the
Purchase Date.
(m) Purchase Date means the date on which the Committee purchases the
shares of Common Stock, which date shall be the last day of an Offering
Period.
(n) Participant means an Employee who elects to participate in the Plan.
(o) Plan means the System Software Associates, Inc. Qualified Employee
Stock Purchase Plan.
3. ELIGIBILITY
All Employees of the Company and, if designated by the Board, any
Affiliate, who are employed by the Company and/or such designated Affiliate on
the Effective Date, shall be eligible to participate in the Plan on the
Effective Date. Subject to the enrollment limitations of Section 6, each other
Employee of the Company and/or a designated Affiliate shall be eligible to
participate on the first day of any fiscal year quarter coincident with or next
following the Employee's first day of employment.
4. ADMINISTRATION
The Plan shall be administered by the Committee, which shall consist of not
less than two (2) members of the Board. Subject to the provisions of the Plan,
the Committee shall be vested with full authority to make, administer, and
interpret such rules and regulations as it deems necessary to administer the
Plan, and any determination, decision, or action of the Committee in connection
with the construction, interpretation, administration, and application of the
Plan shall be final, conclusive, and binding upon all Participants and any and
all persons claiming under or
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through any Participant. Notwithstanding anything to the contrary in the Plan,
the Committee shall have the discretion to modify the terms of the Plan with
respect to Participants who reside outside of the United States or who are
employed by a subsidiary of the Company that has been formed under the laws of
any foreign country, if such modification is necessary in order to conform such
terms to the requirements of local laws.
5. STOCK
(a) The Common Stock to be sold to Participants under the Plan may, at the
election of the Company, be either treasury shares, shares acquired on the
open market, and/or shares originally issued for such purpose. The
aggregate number of shares of Common Stock that shall be made available for
purchase under the Plan (and the Company's Employee Stock Purchase Plan,
which plan shall operate in tandem with the Plan) shall not exceed two
million (2,000,000) shares, subject to adjustment upon changes in
capitalization of the Company as provided in subparagraph (b) below. If the
total number of shares that otherwise would have been acquired under the
Plan on any Purchase Date exceeds the number of shares of Common Stock then
available under the Plan, the Company shall make a pro rata allocation of
the shares remaining available in as nearly a uniform manner as shall be
practicable and as it shall determine to be equitable. In such event, the
payroll deductions to be made pursuant to the Participants' authorizations
shall be reduced accordingly, or refunded to the Participants, as the case
may be, and the Company shall give written notice of such reduction or
refund to each affected Participant.
(b) Appropriate adjustments in the aggregate number of shares of Common
Stock that shall be made available for purchase under the Plan shall be
made to give effect to any mergers, consolidations, acquisitions,
reorganizations, stock splits, stock dividends, or other relevant changes
in the capitalization of the Company occurring after the Effective Date.
The establishment of the Plan shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations, or changes in its capital or business structure or to
merge, consolidate, dissolve, liquidate, sell, or otherwise transfer all or
any part of its business or assets. Adjustments under this Section 5 shall
be made in the sole discretion of the Committee, and its decision shall be
binding and conclusive.
(c) A Participant shall not have any interest in shares covered by his
authorized payroll deduction until shares of Common Stock are acquired for
his Account.
6. PARTICIPATION
(a) After the Effective Date, each Employee may become a Participant in
the Plan by authorizing a payroll deduction on a form provided by the
Committee. Such authorization shall become effective on the first day of
the next fiscal year quarter following the delivery of the authorization
form to the Committee; provided (i) that the
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Employee is eligible under Section 3 to participate in the Plan on such day
and (ii) that the authorization form is delivered to the Committee on or
prior to 4:00 P.M. C.S.T. on the last business day prior to the first day
of such fiscal year quarter.
(b) At the time an Employee files his authorization for a payroll
deduction, he shall elect to have deductions made from each paycheck that
he receives, such deductions to continue until the Participant withdraws
from the Plan or otherwise becomes ineligible to participate in the Plan.
Authorized payroll deductions shall be for a minimum of one percent (1%)
and a maximum of twenty-five percent (25%) of the Participant's
Compensation. The deduction rate so authorized shall continue in effect
through the Offering Period and each succeeding Offering Period, except to
the extent such rate is changed in accordance with the following
guidelines:
(i) The Participant may at any time during any Offering Period,
reduce his rate of payroll deduction by filing an authorization form
with the Company; and
(ii) The Participant may, at any time during any Offering Period,
increase the rate of his payroll deduction by filing an authorization
form with the Committee. The Participant may not, however, effect more
than one (1) such increase per Offering Period.
New deduction rates shall become effective as soon as practicable after the
authorization form is filed with the Committee.
(c) All Compensation deductions made for a Participant shall be credited
to his Account. Except as may otherwise be provided by the Committee under
Section 4, a Participant may not make any separate cash payment into his
Account.
7. PURCHASE OF SHARES
(a) On the date when a Participant's authorization form for a deduction
becomes effective, and on each Offering Date thereafter, he shall be deemed
to have been granted an option to purchase as many full and/or fractional
shares of Common Stock as he will be able to purchase with the Compensation
deductions credited to his Account during the payroll periods within the
applicable Offering Period for which the Compensation deductions are made.
In addition to the foregoing, any cash dividends paid on shares of Common
Stock held in his Account shall be added to the Account, and used to
purchase Common Stock as otherwise provided herein.
(b) The purchase price for the shares of Common Stock to be purchased with
payroll deductions from the Participant shall be equal to the lesser of
ninety percent (90%) (or such other amount as the Committee shall
authorize, but in no event less than eighty-five percent (85%)) of (i) the
"fair market value" of a share of Common Stock on the Offering Date (or, if
later, on the date the Participant's authorization form becomes effective,
as set
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forth in Section 6), or (ii) the "fair market value" of a share on the
Purchase Date. However, if a Participant enters the Plan on other than the
Offering Date, the clause (i) amount shall in no event be less than the
fair market value per share of Common Stock on the Offering Date. Fair
market value shall be defined as the closing bid price of the Common Stock
on the largest national securities exchange on which such Common Stock is
listed at the time the Common Stock is to be valued. If the Common Stock is
not then listed on any such exchange, the fair market value shall be the
closing sales price if such is reported or otherwise the mean between the
closing "Bid" and the closing "Ask" prices, if any, as reported in the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") for the date of valuation, or if none, on the most recent trade
date thirty (30) days or less prior to the date of valuation for which such
quotations are reported. If the Common Stock is not then listed on any such
exchange or quoted in NASDAQ, the fair market value shall be the mean
between the average of the "Bid" and the average of the "Ask" prices, if
any, as reported in the National Daily Quotation Service for the date of
valuation, or, if none, for the most recent trade date thirty (30) days or
less prior to the date of valuation for which such quotations are reported.
If the fair market value cannot be determined under the preceding three
sentences, it shall be determined in good faith by the Committee.
8. TIME OF PURCHASE
From time to time, the Committee shall grant to each Participant an option
to purchase shares of Common Stock in an amount equal to the number of shares of
Common Stock that the accumulated payroll deductions to be credited to his
Account during the Offering Period may purchase at the applicable purchase
price. Each Offering Period shall be for a specified period of time to be fixed
by the Committee and shall be for no less than one month and no more than
twenty-seven (27) months' duration. Each Participant who elects to purchase
shares of Common Stock hereunder shall be deemed to have exercised his option
automatically on such date of purchase. Administrative and commission costs on
purchases shall be paid by the Company. The Committee shall cause to be
delivered periodically to each Participant a statement showing the aggregate
number of shares of Common Stock in his Account, the number of shares of Common
Stock purchased for him in the preceding Offering Period, his aggregate
Compensation deductions for the preceding Offering Period, the price per share
paid for the shares of Common Stock purchased for him during the preceding
Offering Period, and the amount of cash, if any, remaining in his Account at the
end of the preceding Offering Period.
A Participant may request delivery to him of the cash in his Account or of
the shares of Common Stock held in his Account at any time (subject to any
limitations imposed by Section 16(b) of the Securities Exchange Act of 1934),
and the delivery thereof shall be made at such regular time as the Company or
its transfer agent shall determine. If such delivery is required at a time other
than the normal transfer date set by the Company or its transfer agent, the
Participant requesting such transfer shall pay the costs thereof. All of the
cash deposits in his Account shall be paid to him promptly after receipt of
notice of withdrawal, without interest. Shares of Common Stock to be delivered
to a Participant under the Plan shall be registered in the name of
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<PAGE>
the Participant or, if the Participant so directs in writing to the Committee,
in the name of the Participant and such person(s) as may be designated by the
Participant, to the extent permitted by applicable law, and delivered to the
Participant as soon as practicable after the request for a withdrawal. If a
Participant wishes to sell the shares of Common Stock in his Account, he may
notify the Committee to sell the same, in lieu of a distribution of such shares,
in which event all commission costs incurred in connection with the sale of the
shares of Common Stock shall be borne by the Participant. The Company shall pay
administrative costs associated therewith other than costs arising from a sale
occurring at a time different from the prearranged dates set by the Company or
its transfer agent for making such sales.
9. CESSATION OF PARTICIPATION
A Participant may cease participation in the Plan at any time by notifying
the Committee in writing of his intent to cease his participation. If such
notice is received by the Committee the Company shall distribute to the
Participant all of his accumulated payroll deductions, without interest. If any
Participant ceases participation in the Plan, no further Compensation deductions
shall be made on his behalf after the effective date of his cessation, except in
accordance with a new authorization form filed with the Committee as provided in
Section 6. Upon ceasing participation in the Plan, a Participant shall not be
permitted to deliver an authorization form to reenter the Plan until six (6)
months have elapsed from the date his cessation becomes effective.
10. INELIGIBILITY
An Employee must be employed by the Company or an Affiliate on the Purchase
Date in order to participate in the purchase for that Offering Period. If an
option expires without first having been exercised, all funds credited to the
Participant's Account shall be refunded without interest. If a Participant
becomes ineligible to participate in the Plan at any time, all Compensation
deductions made on behalf of the Participant that have not been used to purchase
shares of Common Stock shall be paid to the Participant within thirty (30) days
after the Committee determines that the Participant is not eligible to
participate in the Plan.
11. DESIGNATION OF BENEFICIARY
A Participant may file a written designation of a beneficiary who shall
receive any shares of Common Stock (or remaining Compensation deductions)
credited to the Participant's Account under the Plan in the event of such
Participant's death prior to delivery to him of the certificates for such shares
(or remaining Compensation deductions). The designation of a beneficiary may be
changed by the Participant at any time by written notice given in accordance
with rules and procedures established by the Committee. Upon the death of a
Participant, and upon receipt by the Company of proof of the identity and
existence, at the Participant's death, of a beneficiary validly designated by
him under the Plan, the Company shall deliver such shares of Common Stock (or
remaining Compensation deductions) to such beneficiary. In the event of the
death of the Participant, and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such Participant's death, the
Company shall deliver such shares (or remaining Compensation deductions) to the
executor or administrator of the estate of the Participant, or if no such
executor or administrator has been appointed, the Company, in its sole
discretion, may deliver such shares (or
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<PAGE>
remaining Compensation deductions) to the Participant's spouse or to any one or
more dependents or relatives of the Participant, or to such other person or
persons as the Company may designate on behalf of the estate of such deceased
Participant.
12. TRANSFERABILITY
Neither Compensation deductions nor Plan contributions credited to a
Participant's Account nor any rights with regard to Plan participation or the
right to purchase shares of Common Stock under the Plan may be assigned,
transferred, pledged, or otherwise disposed of in any way by a Participant other
than by will or the laws of descent and distribution; provided, however, that
shares of Common Stock purchased on behalf of a Participant and left in his
Account shall be subject to his absolute control. Any attempted assignment,
transfer, pledge, or other disposition shall be void and without effect.
13. AMENDMENT OR TERMINATION
The Board may, without further action on the part of the stockholders of
the Company, at any time amend the Plan in any respect, or terminate the Plan,
except that it may not:
(a) Permit the sale of more shares of Common Stock than are authorized
under Section 5;
(b) Permit Compensation deductions at a rate in excess of the rate set
forth herein;
(c) Change the class of eligible Employees; or
(d) Effect a change inconsistent with Section 423 of the Code or the
regulations issued thereunder.
14. NOTICES
All notices or other communications by a Participant under or in connection
with the Plan shall be deemed to have been duly given when received in writing
by the Chief Financial Officer of the Company or when received in the form
specified by the Committee at the location and by the person designated by the
Committee for the receipt thereof.
15. LIMITATIONS
Notwithstanding any other provisions of the Plan:
(a) The Company intends that this Plan shall constitute an employee stock
purchase plan within the meaning of Section 423 of the Code. Any provisions
required to be
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included in the Plan under said Section, and under regulations issued
thereunder, are hereby included as though set forth in the Plan at length.
(b) No Employee shall be entitled to participate in the Plan if,
immediately after the grant of an option hereunder, the Employee would own
stock possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Company or an Affiliate. For
purposes of this Section 15, stock ownership shall be determined under the
rules of Section 424(d) of the Code and stock that the Employee may
purchase under outstanding options shall be treated as stock owned by the
Employee.
(c) No Employee shall be permitted to purchase Common Stock hereunder if
his right and option to purchase Common Stock under this Plan and under all
other employee stock purchase plans (as defined in Section 423 of the Code)
of the Company or any Affiliates would result in an entitlement to purchase
Common Stock in any one (1) calendar year in excess of a fair market value
of $25,000 (determined at the time of grant).
(d) All Employees shall have the same rights and privileges under the
Plan, except that the amount of Common Stock that may be purchased pursuant
to the Plan shall bear a uniform relationship to an Employee's
Compensation. All rules and determinations of the Committee shall be
uniformly and consistently applied to all persons in similar circumstances.
(e) Nothing in the Plan shall confer upon any Employee the right to
continue in the employment of the Company or any Affiliate or affect the
right that the Company or any Affiliate may have to terminate the
employment of such Employee.
(f) No Participant shall have any right as a stockholder unless and until
certificates for shares of Common Stock are issued to him or allocated to
his Account.
(g) Under any provision of the Plan that requires a computation of the
number of shares of Common Stock to be purchased, such number of shares of
Common Stock may be expressed as a whole number or as a fractional portion
of a whole number.
(h) The Plan is intended to provide shares of Common Stock for investment
and not for resale. The Company does not, however, intend to restrict or
influence any Participant in the conduct of his own affairs. A Participant,
therefore, may sell shares of Common Stock purchased under the Plan at any
time he chooses, subject to compliance with any applicable federal or state
securities laws or any applicable Company restriction or blackout period,
provided, however, that because of certain federal tax requirements, each
Participant shall agree, by entering the Plan:
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<PAGE>
(i) promptly to give the Company notice of any shares of Common Stock
disposed of within two (2) years after the Offering Date of the
applicable option, or within one (1) year of the Purchase Date, and
the number of such shares disposed of (a "disqualifying disposition");
(ii) that the Company may withhold, pursuant to Code Sections 3102,
3301, and 3402, from his wages and other cash compensation paid to him
in all payroll periods following in the same calendar year, any
additional taxes the Company may become liable for in respect of
amounts includable in his income as additional compensation as a
result of a disqualifying disposition of Common Stock acquired under
the Plan, or as a result of the acquisition of Common Stock under the
Plan; and
(iii) that he shall repay the Company any amount of additional taxes
the Company may become liable for in respect of amounts includable in
his income as additional compensation as a result of a disqualifying
disposition of Common Stock acquired under the Plan, or as a result of
the acquisition of Common Stock under the Plan, that cannot be
satisfied by withholding from the wages and other cash compensation
paid to him by the Company.
(i) This Plan is intended to comply in all respects with applicable law and
regulations, including with respect to Participants who are officers or
directors for purposes of Section 16 of the Securities Exchange Act of
1934, as amended from time to time, Rule 16b-3 of the Securities and
Exchange Commission. In case any one or more provisions of this Plan shall
be held invalid, illegal, or unenforceable in any respect under applicable
law and regulation (including Rule 16b-3), the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby and the invalid, illegal, or unenforceable provision
shall be deemed null and void; however, to the extent permitted by law, any
provision that could be deemed null and void shall first be construed,
interpreted, or revised retroactively to permit this Plan to be construed
in compliance with all applicable law (including Rule 16b-3), so as to
further the intent of this Plan. Notwithstanding anything herein to the
contrary, with respect to Participants who are officers and directors for
purposes of Section 16(b) of the Securities Exchange Act of 1934, as
amended from time to time, and if required to comply with the rules
promulgated thereunder, such Participants shall not be permitted to direct
the sale of any Common Stock purchased hereunder until at six (6) months
have elapsed from the date of purchase, unless the Committee determines
that the sale of the Common Stock otherwise satisfies the then current Rule
16b-3 requirements.
16. EFFECTIVE DATE AND APPROVALS
The Plan shall become effective at a time when:
(a) the Plan has been adopted by the Board; and
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(b) a registration statement on Form S-8 under the Securities Act of 1933,
as amended, has become effective with respect to the Plan; and
(c) the Committee has notified the eligible Employees that they may
commence participation in the Plan; and
(d) the Plan is approved by the holders of a majority of the outstanding
shares of Common Stock of the Company, which approval must occur within the
period ending twelve (12) months after the date the Plan is adopted by the
Board. In the event such stockholder approval is not obtained, the Plan
shall terminate and have no further force or effect, and all amounts
collected from the Participants during any initial Offering Period(s)
hereunder shall be refunded.
Unless sooner terminated by the Board, or as set forth above, the Plan shall
terminate upon the earlier of (i) the tenth (10th) anniversary of the adoption
of the Plan by the Board, or (ii) the date on which all shares available for
issuance under the Plan shall have been sold under the Plan.
17. APPLICABLE LAW
All questions pertaining to the validity, construction, and administration of
the Plan shall be determined in conformity with the laws of Illinois, to the
extent not inconsistent with Section 423 of the Code and the regulations
thereunder.
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EXHIBIT 4.5
SYSTEM SOFTWARE ASSOCIATES, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
The purpose of the System Software Associates, Inc. Employee Stock Purchase
Plan is to provide eligible Employees of System Software Associates, Inc. and
its Affiliates with an opportunity to acquire a proprietary interest in the
Company through the purchase of Common Stock of the Company on a payroll
deduction basis. It is believed that participation in the ownership of the
Company will be to the mutual benefit of the eligible Employees and the Company.
This Plan is not intended to constitute an "employee stock purchase plan" within
the meaning of Section 423 of the Internal Revenue Code of 1986, as amended.
2. DEFINITIONS
Unless otherwise specified or unless the context otherwise requires, the
following terms, as used in this Plan, have the following meanings. Wherever
appropriate, words used in the singular shall be deemed to include the plural
and vice versa, and the masculine gender shall be deemed to include the feminine
gender.
(a) Account means the funds accumulated with respect to an Employee as a
result of deductions from his paycheck for the purpose of purchasing Common
Stock under the Plan. The funds allocated to an Employee's Account shall
remain the property of the Employee at all times prior to the purchase of
the Common Stock, but may be commingled with the assets of the Company and
used for general corporate purposes. No interest shall be paid or accrued
on any funds accumulated in the Accounts of Employees.
(b) Affiliate means a corporation, as defined in Section 424(f) of the
Code, that is a parent or subsidiary of the Company, direct or indirect.
(c) Board means the Board of Directors of the Company.
(d) Code means the Internal Revenue Code of 1986, as amended.
(e) Committee means the committee to which the Board delegates the power
to act under or pursuant to the provisions of the Plan, or the Board if no
committee is selected.
(f) Common Stock means the shares of common stock of the Company, $.01 par
value.
(g) Company means System Software Associates, Inc., a Delaware
corporation, and any corporate successor to all or substantially all of the
assets or voting stock of the Company.
<PAGE>
(h) Compensation means the compensation paid to an Employee by the Company
during a payroll period for federal income tax purposes, as reported on an
Employee's Form W-2 (or comparable reporting form) for income tax
withholding purposes.
(i) Effective Date means the date the Plan is adopted by, and made
effective by, the Board, subject to the limitations of Section 16.
(j) Employee means any person who is employed by the Company or an
Affiliate.
(k) Offering Date means the date on which the Committee grants Employees
the option to purchase shares of Common Stock.
(l) Offering Period means the period between the Offering Date and the
Purchase Date.
(m) Purchase Date means the date on which the Committee purchases the
shares of Common Stock, which date shall be the last day of an Offering
Period.
(n) Participant means an Employee who elects to participate in the Plan.
(o) Plan means the System Software Associates, Inc. Employee Stock
Purchase Plan.
3. ELIGIBILITY
All Employees of the Company and, if designated by the Board, any
Affiliate, who are employed by the Company and/or such designated Affiliate on
the Effective Date, shall be eligible to participate in the Plan on the
Effective Date. Subject to the enrollment limitations of Section 6, each other
Employee of the Company and/or a designated Affiliate shall be eligible to
participate on the first day of any fiscal year quarter coincident with or next
following the Employee's first day of employment.
4. ADMINISTRATION
The Plan shall be administered by the Committee, which shall consist of not
less than two (2) members of the Board. Subject to the provisions of the Plan,
the Committee shall be vested with full authority to make, administer, and
interpret such rules and regulations as it deems necessary to administer the
Plan, and any determination, decision, or action of the Committee in connection
with the construction, interpretation, administration, and application of the
Plan shall be final, conclusive, and binding upon all Participants and any and
all persons claiming under or through any Participant. Notwithstanding anything
to the contrary in the Plan, the Committee shall have the discretion to modify
the terms of the Plan with respect to Participants who reside outside of the
United States or who are employed by a subsidiary of the Company that has been
formed under the laws of any foreign country, if such modification is necessary
in order to conform such terms to the requirements of local laws.
2
<PAGE>
5. STOCK
(a) The Common Stock to be sold to Participants under the Plan may, at the
election of the Company, be either treasury shares, shares acquired on the
open market, and/or shares originally issued for such purpose. The
aggregate number of shares of Common Stock that shall be made available for
purchase under the Plan (and the Company's Qualified Employee Stock
Purchase Plan, which plan shall operate in tandem with the Plan) shall not
exceed two million (2,000,000) shares, subject to adjustment upon changes
in capitalization of the Company as provided in subparagraph (b) below. If
the total number of shares that otherwise would have been acquired under
the Plan on any Purchase Date exceeds the number of shares of Common Stock
then available under the Plan, the Company shall make a pro rata allocation
of the shares remaining available in as nearly a uniform manner as shall be
practicable and as it shall determine to be equitable. In such event, the
payroll deductions to be made pursuant to the Participants' authorizations
shall be reduced accordingly, or refunded to the Participants, as the case
may be, and the Company shall give written notice of such reduction or
refund to each affected Participant.
(b) Appropriate adjustments in the aggregate number of shares of Common
Stock that shall be made available for purchase under the Plan shall be
made to give effect to any mergers, consolidations, acquisitions,
reorganizations, stock splits, stock dividends, or other relevant changes
in the capitalization of the Company occurring after the Effective Date.
The establishment of the Plan shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations, or changes in its capital or business structure or to
merge, consolidate, dissolve, liquidate, sell, or otherwise transfer all or
any part of its business or assets. Adjustments under this Section 5 shall
be made in the sole discretion of the Committee, and its decision shall be
binding and conclusive.
(c) A Participant shall not have any interest in shares covered by his
authorized payroll deduction until shares of Common Stock are acquired for
his Account.
6. PARTICIPATION
(a) After the Effective Date, each Employee may become a Participant in
the Plan by authorizing a payroll deduction on a form provided by the
Committee. Such authorization shall become effective on the first day of
the next fiscal year quarter following the delivery of the authorization
form to the Committee; provided (i) that the Employee is eligible under
Section 3 to participate in the Plan on such day and (ii) that the
authorization form is delivered to the Committee on or prior to 4:00 P.M.
C.S.T on the last business day prior to the first day of such fiscal year
quarter.
(b) At the time an Employee files his authorization for a payroll
deduction, he shall elect to have deductions made from each paycheck that
he receives, such deductions to continue until the Participant withdraws
from the Plan or otherwise becomes ineligible to
3
<PAGE>
participate in the Plan. Authorized payroll deductions shall be for a
minimum of one percent (1%) of the Participant's Compensation. The
deduction rate so authorized shall continue in effect through the Offering
Period and each succeeding Offering Period, except to the extent such rate
is changed in accordance with the following guidelines.
(i) The Participant may, at any time during any Offering Period,
reduce his rate of payroll deduction by filing an authorization form
with the Committee; and
(ii) The Participant may, at any time during any Offering Period,
increase the rate of his payroll deduction by filing an authorization
form with the Committee. The Participant may not however, effect more
than one (1) such increase per Offering Period.
New deduction rates shall become effective as soon as practicable after the
authorization form is filed with the Committee.
(c) All Compensation deductions made for a Participant shall be credited
to his Account. Except as may otherwise be provided by the Committee under
Section 4, a Participant may not make any separate cash payment into his
Account.
7. PURCHASE OF SHARES
(a) On the date when a Participant's authorization form for a deduction
becomes effective, and on each Offering Date thereafter, he shall be deemed
to have been granted an option to purchase as many full and/or fractional
shares of Common Stock as he will be able to purchase with the Compensation
deductions credited to his Account during the payroll periods within the
applicable Offering Period for which the Compensation deductions are made.
In addition to the foregoing, any cash dividends paid on shares of Common
Stock held in his Account shall be added to the Account, and used to
purchase Common Stock as otherwise provided herein.
(b) The purchase price for the shares of Common Stock to be purchased with
payroll deductions from the Participant shall be equal to the lesser of
ninety percent (90%) (or such other amount as the Committee shall
authorize, but in no event less than eighty-five percent (85%)) of (i) the
"fair market value" of a share of Common Stock on the Offering Date (or, if
later, on the date the Participant's authorization form becomes effective,
as set forth in Section 6), or (ii) the "fair market value" of a share on
the Purchase Date. However, if a Participant enters the Plan on other than
the Offering Date, the clause (i) amount shall in no event be less than the
fair market value per share of Common Stock on the Offering Date. Fair
market value shall be defined as the closing bid price of the Common Stock
on the largest national securities exchange on which such Common Stock is
listed at the time the Common Stock is to be valued. If the Common Stock
is not then listed on any such exchange, the fair market value shall be the
closing sales price if such is reported or otherwise the mean between the
closing "Bid" and the closing "Ask" prices, if any, as reported in the
National Association of Securities Dealers Automated Quotation
4
<PAGE>
System ("NASDAQ") for the date of valuation, or if none, on the most recent
trade date thirty (30) days or less prior to the date of valuation for
which such quotations are reported. If the Common Stock is not then listed
on any such exchange or quoted in NASDAQ, the fair market value shall be
the mean between the average of the "Bid" and the average of the "Ask"
prices, if any, as reported in the National Daily Quotation Service for the
date of valuation, or, if none, for the most recent trade date thirty (30)
days or less prior to the date of valuation for which such quotations are
reported. If the fair market value cannot be determined under the preceding
three sentences, it shall be determined in good faith by the Committee.
8. TIME OF PURCHASE
From time to time, the Committee shall grant to each Participant an option
to purchase shares of Common Stock in an amount equal to the number of shares of
Common Stock that the accumulated payroll deductions to be credited to his
Account during the Offering Period may purchase at the applicable purchase
price. Each Offering Period shall be for a specified period of time to be fixed
by the Committee and shall be for no less than one month. Each Participant who
elects to purchase shares of Common Stock hereunder shall be deemed to have
exercised his option automatically on such date of purchase. Administrative and
commission costs on purchases shall be paid by the Company. The Committee shall
cause to be delivered periodically to each Participant a statement showing the
aggregate number of shares of Common Stock in his Account, the number of shares
of Common Stock purchased for him in the preceding Offering Period, his
aggregate Compensation deductions for the preceding Offering Period, the price
per share paid for the shares of Common Stock purchased for him during the
preceding Offering Period, and the amount of cash, if any, remaining in his
Account at the end of the preceding Offering Period.
A Participant may request delivery to him of the cash in his Account or of
the shares of Common Stock held in his Account at any time (subject to any
limitations imposed by Section 16(b) of the Securities Exchange Act of 1934),
and the delivery thereof shall be made at such regular time as the Company or
its transfer agent shall determine. If such delivery is required at a time
other than the normal transfer date set by the Company or its transfer agent,
the Participant requesting such transfer shall pay the costs thereof. All of
the cash deposits in his Account shall be paid to him promptly after receipt of
notice of withdrawal, without interest. Shares of Common Stock to be delivered
to a Participant under the Plan shall be registered in the name of the
Participant or, if the Participant so directs in writing to the Committee, in
the name of the Participant and such person(s) as may be designated by the
Participant, to the extent permitted by applicable law, and delivered to the
Participant as soon as practicable after the request for a withdrawal. If a
Participant wishes to sell the shares of Common Stock in his Account, he may
notify the Committee to sell the same, in lieu of a distribution of such shares,
in which event all commission costs incurred in connection with the sale of the
shares of Common Stock shall be borne by the Participant. The Company shall pay
administrative costs associated therewith other than costs arising from a sale
occurring at a time different from the prearranged dates set by the Company or
its transfer agent for making such sales.
5
<PAGE>
9. CESSATION OF PARTICIPATION
A Participant may cease participation in the Plan at any time by notifying
the Committee in writing of his intent to cease his participation. If such
notice is received by the Committee the Company shall distribute to the
Participant all of his accumulated payroll deductions, without interest. If any
Participant ceases participation in the Plan, no further Compensation deductions
shall be made on his behalf after the effective date of his cessation, except in
accordance with a new authorization form filed with the Committee as provided in
Section 6. Upon ceasing participation in the Plan, a Participant shall not be
permitted to deliver an authorization form to reenter the Plan until six (6)
months have elapsed from the date his cessation becomes effective.
10. INELIGIBILITY
An Employee must be employed by the Company or an Affiliate on the Purchase
Date in order to participate in the purchase for that Offering Period. If an
option expires without first having been exercised, all funds credited to the
Participant's Account shall be refunded without interest. If a Participant
becomes ineligible to participate in the Plan at any time, all Compensation
deductions made on behalf of the Participant that have not been used to purchase
shares of Common Stock shall be paid to the Participant within thirty (30) days
after the Committee determines that the Participant is not eligible to
participate in the Plan.
11. DESIGNATION OF BENEFICIARY
A Participant may file a written designation of a beneficiary who shall
receive any shares of Common Stock (or remaining Compensation deductions)
credited to the Participant's Account under the Plan in the event of such
Participant's death prior to delivery to him of the certificates for such shares
(or remaining Compensation deductions). The designation of a beneficiary may be
changed by the Participant at any time by written notice given in accordance
with rules and procedures established by the Committee. Upon the death of a
Participant, and upon receipt by the Company of proof of the identity and
existence, at the Participant's death, of a beneficiary validly designated by
him under the Plan, the Company shall deliver such shares of Common Stock (or
remaining Compensation deductions) to such beneficiary. In the event of the
death of the Participant, and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such Participant's death, the
Company shall deliver such shares (or remaining Compensation deductions) to the
executor or administrator of the estate of the Participant, or if no such
executor or administrator has been appointed, the Company, in its sole
discretion, may deliver such shares (or remaining Compensation deductions) to
the Participant's spouse or to any one or more dependents or relatives of the
Participant, or to such other person or persons as the Company may designate on
behalf of the estate of such deceased Participant.
12. TRANSFERABILITY
Neither Compensation deductions nor Plan contributions credited to a
Participant's Account nor any rights with regard to Plan participation or the
right to purchase shares of Common Stock under the Plan may be assigned,
transferred, pledged, or otherwise disposed of in
6
<PAGE>
any way by a Participant other than by will or the laws of descent and
distribution; provided, however, that shares of Common Stock purchased on behalf
of a Participant and left in his Account shall be subject to his absolute
control. Any attempted assignment, transfer, pledge, or other disposition shall
be void and without effect.
13. AMENDMENT OR TERMINATION
The Board may, at any time amend the Plan in any respect, or terminate the
Plan, provided that no amendment or termination may decrease the rights of a
Participant during an Offering Period without his consent.
14. NOTICES
All notices or other communications by a Participant under or in connection
with the Plan shall be deemed to have been duly given when received in writing
by the Chief Financial Officer of the Company or when received in the form
specified by the Committee at the location and by the person designated by the
Committee for the receipt thereof.
15. LIMITATIONS
Notwithstanding any other provisions of the Plan:
(a) All Employees shall have the same rights and privileges under the
Plan, except that the amount of Common Stock that may be purchased pursuant
to the Plan shall bear a uniform relationship to an Employee's
Compensation. All rules and determinations of the Committee shall be
uniformly and consistently applied to all persons in similar circumstances.
(b) Nothing in the Plan shall confer upon any Employee the right to
continue in the employment of the Company or any Affiliate or affect the
right that the Company or any Affiliate may have to terminate the
employment of such Employee.
(c) No Participant shall have any right as a stockholder unless and until
certificates for shares of Common Stock are issued to him or allocated to
his Account.
(d) Under any provision of the Plan that requires a computation of the
number of shares of Common Stock to be purchased, such number of shares of
Common Stock may be expressed as a whole number or as a fractional portion
of a whole number.
(e) The Plan is intended to provide shares of Common Stock for investment
and not for resale. The Company does not, however, intend to restrict or
influence any Participant in the conduct of his own affairs. A Participant,
therefore, may sell shares of Common Stock purchased under the Plan at any
time he chooses, subject to compliance with any applicable federal or state
securities laws or any applicable Company restriction
7
<PAGE>
or blackout period; provided, however, that because of certain federal tax
requirements, each Participant shall agree, by entering the Plan:
(i) that the Company may withhold, pursuant to Code Sections 3102,
3301, and 3402, from his wages and other cash compensation paid to him
in all payroll periods following in the same calendar year, any taxes
the Company may become liable for in respect of amounts includable in
his income as compensation as a result of the acquisition of Common
Stock under the Plan; and
(ii) that he shall repay the Company any amount of taxes the Company
may become liable for in respect of amounts includable in his income
as compensation as a result of a purchase of Common Stock under the
Plan that cannot be satisfied by withholding from the wages and other
cash compensation paid to him by the Company.
(f) This Plan is intended to comply in all respects with applicable law
and regulations, including with respect to Participants who are officers or
directors for purposes of Section 16 of the Securities Exchange Act of
1934, as amended from time to time, Rule 16b-3 of the Securities and
Exchange Commission. In case any one or more provisions of this Plan shall
be held invalid, illegal, or unenforceable in any respect under applicable
law and regulation (including Rule 16b-3), the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby and the invalid, illegal, or unenforceable provision
shall be deemed null and void; however, to the extent permitted by law, any
provision that could be deemed null and void shall first be construed,
interpreted, or revised retroactively to permit this Plan to be construed
in compliance with all applicable law (including Rule 16b-3), so as to
further the intent of this Plan. Notwithstanding anything herein to the
contrary, with respect to Participants who are officers and directors for
purposes of Section 16(b) of the Securities Exchange Act of 1934, as
amended from time to time, and if required to comply with the rules
promulgated thereunder, such Participants shall not be permitted to direct
the sale of any Common Stock purchased hereunder until at six (6) months
have elapsed from the date of purchase, unless the Committee determines
that the sale of the Common Stock otherwise satisfies the then current Rule
16b-3 requirements.
16. EFFECTIVE DATE AND APPROVALS
The Plan shall become effective at a time when:
(a) the Plan has been adopted by the Board;
(b) a registration statement on Form S-8 under the Securities Act of 1933,
as amended, has become effective with respect to the Plan; and
(c) the Committee has notified the eligible Employees that they may
commence participation in the Plan.
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Unless sooner terminated by the Board, the Plan shall terminate upon the earlier
of (i) the tenth (10th) anniversary of the adoption of the Plan by the Board, or
(ii) the date on which all shares available for issuance under the Plan shall
have been sold under the Plan.
17. APPLICABLE LAW
All questions pertaining to the validity, construction, and administration of
the Plan shall be determined in conformity with the laws of Illinois.
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EXHIBIT 5
[LETTERHEAD OF SACHNOFF & WEAVER, LTD.]
September 29, 1997
System Software Associates, Inc.
500 West Madison Street
Suite 3200
Chicago, IL 60661
Re: Registration Statement on Form S-8
System Software Associates, Inc. Qualified Employee Stock Purchase
Plan
and System Software Associates, Inc. Employee Stock Purchase Plan
Gentlemen:
We have acted as counsel for System Software Associates, Inc. (the
"Company") in connection with the Registration Statement on Form S-8 filed by
the Company with the Securities and Exchange Commission to effect the
registration, pursuant to the Securities Act of 1933, of 2,000,000 shares of
common stock, $0.0033 par value (the "Common Stock"), which may be offered by
the Company under the above-referenced Plans.
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and upon
affidavits, certificates and statements of directors, officers and employees of,
and the accountants for, the Company. We also have examined originals or
copies, certified or otherwise identified to our satisfaction, of such corporate
and other instruments, documents and records as we have deemed relevant and
necessary to examine for the purpose of this opinion, including the Plans. In
addition, we have reviewed such questions of law as we have considered necessary
and appropriate for the purposes of this opinion.
We have assumed the accuracy and completeness of all documents and records
that we have reviewed, the genuineness of all signatures, the due authority of
the parties signing such documents, the authenticity of all documents submitted
to us as originals, the conformity to
<PAGE>
Sachnoff & Weaver, Ltd.
Attorneys at Law
System Software Associates, Inc.
September 29, 1997
Page 2
original documents of all the documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter
documents.
Based upon and subject to the foregoing, we advise you that, in our
opinion, the shares of Common Stock proposed to be offered by the Company as set
forth in the Registration Statement have been duly authorized and, when issued
and sold as set forth in the Registration Statement, and in accordance with the
System Software Associates, Inc. Qualified Employee Stock Purchase Plan and the
System Software Associates, Inc. Employee Stock Purchase Plan referred to in the
Registration Statement, such shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement. In giving this consent, we do not
hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933 or the rules and regulations of
the Securities and Exchange Commission.
We express no opinions as to matters under or involving any laws other than
the laws of the State of Illinois, the federal laws of the United States of
America, and the General Corporation Law of the State of Delaware.
Very truly yours,
/s/ SACHNOFF & WEAVER, LTD.
SACHNOFF & WEAVER, LTD.
JLL/WED/cln
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 7, 1997, except as to Notes 6,
7 and 11 which are as of January 29, 1997, relating to the consolidated
financial statement of System Software Associates, Inc. ("SSA") as of October
31, 1995 and for the two years then ended, appearing on page F-3 of SSA Annual
Report on Form 10-K for the year ended October 31, 1996.
/s/ Price Waterhouse LLP
- ------------------------
PRICE WATERHOUSE LLP
Chicago, Illinois
September 29, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement
on Form S-8 related to the System Software Associates, Inc. Qualified Employee
Stock Purchase Plan and System Software Associates, Inc. Employee Stock Purchase
Plan of our report dated January 7, 1997, except as to Notes 6, 7, and 11 which
are as of January 29, 1997, relating to the consolidated balance sheet of System
Software Associates, Inc. and subsidiaries as of October 31, 1996, and the
related consolidated statements of operations, stockholders' equity, and cash
flows for the year then ended, which report appears in the October 31, 1996
annual report on Form 10-K of System Software Associates, Inc.
Chicago, Illinois /s/ KPMG Peat Marwick LLP
September 26, 1997 ------------------------------------
KPMG PEAT MARWICK LLP
