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Registration No. 333-_____________
As filed with the Securities and Exchange Commission on November 4, 1999
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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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
registrant's principal executive offices) principal executive offices)
SYSTEM SOFTWARE ASSOCIATES, INC. LONG-TERM INCENTIVE 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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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> <C> <C>
Common Stock, par value
$.0033 per share 1,208,410 $2.0156 $2,435,671 $677
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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therein is modified, superseded or replaced by a statement or information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
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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.
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Robert R. Carpenter William N. Weaver, Jr.
/s/ Douglas Smith /s/ Andrew J. Filipowski
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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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Signature Title Date
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<S> <C> <C>
Chief Executive Officer, President and
Chairman of the Board of Directors
/s/ Robert R. Carpenter (Principal Executive Officer)
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Robert R. Carpenter October 29, 1999
Vice President of Finance and Controller
/s/ Joseph Skadra (Principal Financial and Accounting Officer)
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Joseph Skadra October 29, 1999
/s/ William N. Weaver, Jr. Director October 29, 1999
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William N. Weaver, Jr.
/s/ Douglas Smith Director October 29, 1999
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Douglas Smith
/s/ Andrew J. Filipowski Director October 29, 1999
- -----------------------------
Andrew J. Filipowski
</TABLE>
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EXHIBIT INDEX
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<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)
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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 1,208,410 shares of
common stock, $0.0033 par value (the "COMMON STOCK"), which may be offered by
the Company under its Long-Term Incentive 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.
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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 1,208,410 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. Long-Term Incentive 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
