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Registration No. 333-____________
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As filed with the Securities and Exchange Commission on November 4, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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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, 32ND FLOOR (312) 258-6000
CHICAGO, ILLINOIS 60661 (Telephone number, including
(Address, including Zip Code, of area code, of registrant's
principal executive offices) principal executive offices)
SYSTEM SOFTWARE ASSOCIATES, INC. STOCK OPTION PLAN
Mr. Robert R. Carpenter
Chief Executive Officer
System Software Associates, Inc.
500 West Madison
Chicago, Illinois 60661
(312) 258-6000
(Name, address, including zip code and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED* SHARE** PRICE** REGISTRATION FEE**
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<S> <C> <C>
Common Stock, par value
$.0033 per share 1,000,000 $2.0156 $2,015,600 $560
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</TABLE>
* This Registration Statement includes any additional shares of the registrant's
Common Stock that may be issued pursuant to antidilution provisions contained in
the plan.
** Pursuant to Rule 457(h), the registration fee was computed on the basis of
the average of the bid and asked price of the registrant's Common Stock on
October 29, 1999.
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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:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
October 31, 1998, filed on January 29, 1999, as amended on Form
10-K/A on March 2, 1999;
(b) the Company's Quarterly Report on Form 10-Q for the periods ended
January 31, 1999, April 30, 1999 and July 31, 1999;
(c) the Company's Proxy Statement on Form 14A, filed on March 4, 1999
and July 2, 1999;
(d) the Company's Current Report on Form 8-K, filed February 18, 1999
and September 20, 1999;
(e) the description of the Company's Common Stock, $.0033 par value
per share, contained in the Company's Registration Statement on
Form 8-A, declared effective February 12, 1987 and February 18,
1999; and
(f) the description of the Company's Common Stock Purchase Rights
contained in the Company's Registration statement on Form 8-K,
filed May 18, 1988.
All documents filed by the Company 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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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 amount 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.
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to officers, directors, and controlling persons of
the registrant pursuant to the registrant's certificate of incorporation
or by-laws, or otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
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
October, 1999.
System Software Associates, Inc.
By: /s/ Robert R. Carpenter
----------------------
Robert R. Carpenter
Its: Chief Executive Officer
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Robert R. Carpenter and William
N. Weaver, Jr., and each of them singly, his true and lawful
attorney-in-fact and agents, with full power and 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 attorney-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 attorney-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 October, 1999.
/s/ Robert R. Carpenter /s/ William N. Weaver, Jr.
-------------------------- ----------------------------
Robert R. Carpenter William N. Weaver, Jr.
/s/ Douglas Smith /s/ Andrew J. Filipowski
-------------------------- ----------------------------
Douglas Smith Andrew J. Filipowski
/S/ JOSEPH SKADRA
--------------------------
Joseph Skadra
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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 the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Chief Executive Officer, President
and Chairman of the Board of
/s/ Robert R. Carpenter Directors (Principal Executive
- --------------------------- Officer) October 29, 1999
Robert R. Carpenter
Vice President of Finance
/s/ Joseph Skadra and Controller (Principal Financial
- --------------------------- and Accounting Officer) October 29, 1999
Joseph Skadra
/s/ William N. Weaver, Jr. Director October 29, 1999
- ---------------------------
William N. Weaver, Jr.
/s/ Douglas Smith Director October 29, 1999
- ---------------------------
Douglas Smith
/s/ Andrew J. Filipowski Director October 29, 1999
- ---------------------------
Andrew J. Filipowski
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
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<S> <C>
4.1 Certificate of Incorporation of System Software Associates, Inc., as amended to
date.*
4.2 By-Laws of System Software Associates, Inc., as amended to date.**
4.3 Rights Agreement dated as of May 3, 1988.***
5 Opinion of Sachnoff & Weaver, Ltd.
23 Consent of KPMG LLP
24 Powers of Attorney (contained on the signature page hereto)
</TABLE>
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* 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).
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EXHIBIT 5
[LETTERHEAD OF SACHNOFF & WEAVER, LTD.]
November 2, 1999
System Software Associates, Inc.
500 West Madison
32nd Floor
Chicago, IL 60606
RE: REGISTRATION STATEMENT ON FORM S-8
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 1,000,000 shares of
common stock, $0.0033 par value (the "COMMON STOCK"), which may be offered by
the Company under its Stock Option Plan (the "PLAN").
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 Plan. In
addition, we have reviewed such questions of law as we have considered necessary
and appropriate for the purposes of this opinion.
<PAGE>
System Software Associates, Inc.
November 2, 1999
Page 2
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 original documents of all the documents
submitted to us as certified, conformed 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 1,000,000 shares of Common Stock proposed to be offered by the
Company as set forth in the Registration Statement have been duly authorized for
issuance and, when issued and sold in accordance with the System Software
Associates, Inc. Stock Option 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.
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SACHNOFF & WEAVER, LTD.
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EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement
on Form S-8 of our report dated December 10, 1998, relating to the
consolidated balance sheets of System Software Associates, Inc. and
subsidiaries as of October 31, 1998 and 1997, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of
the years in the three-year period ended October 31, 1998, and the related
schedule, which report appears in the October 31, 1998 annual report on Form
10-K of System Software Associates, Inc.
/s/ KPMG LLP
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KPMG LLP
Chicago, Illinois
November 1, 1999
