<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Post Effective Amendment No. 1
To
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------
ENTERPRISE SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 68-0158367
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
38705 Seven Mile Road, Suite 435, Livonia, Michigan 48152, (248) 380-6070
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ENTERPRISE SOFTWARE, INC.
1998 Employee Stock Option Plan
(Full title of the plan)
Andre A. Blay
Chief Executive Officer and Chairman of the Board
Enterprise Software, Inc.
38705 Seven Mile Road, Suite 435
Livonia, Michigan 48152
(248) 380-6070
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------
Copy to:
David D. Joswick, Esq.
Miller, Canfield, Paddock and Stone, P.L.C.
150 West Jefferson, Suite 2500
Detroit, Michigan 48226
(313) 963-6420
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED OFFERING PRICE PER SHARE(1) AGGREGATE OFFERING REGISTRATION FEE
PRICE(1)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 540,000 shares $6.3125 $3,408,750 $947.62
$.001 par value
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(h)(1) under the Securities Act, the offering
price is based upon the average high and low sales prices of the Common Stock as
reported on the National Association of Securities Dealers National Market
System on February 1, 1999.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Enterprise Software, Inc.
("Registrant") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), hereby are incorporated in this Registration Statement by
reference: (a) Registrant's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 1998, filed with the Commission on June 30, 1998, as amended by
Forms 10-KSB/A, filed on August 13 and August 17, 1998; (b) Registrant's
Quarterly Report on Form 10-QSB for the quarter ended June 30, 1998, filed with
the Commission August 12, 1998; (c) Registrant's Quarterly Report on Form 10-QSB
for the quarter ended September 30, 1998, filed with the Commission November 16,
1998, as amended by Form 10-QSB, filed on December 29, 1998; (d) Registrant's
Current Report on Form 8-K, filed with the Commission August 11, 1998; (e)
Registrant's Current Report on Form 8-K, filed with the Commission September 16,
1998, as amended by Form 8-K/A, filed on November 16, 1998; (f) Registrant's
Current Report on Form 8-K, filed with the Commission January 4, 1999; (g)
Registrant's Current Report on Form 8-K, filed with the Commission January 21,
1999; (h) Registrant's Current Report on Form 8-K, filed with the Commission
January 21, 1999; and (i) the description of Registrant's common stock, $0.001
par value, included in Registrant's Exchange Act Registration Statement on Form
8-A filed with the Commission October 12, 1989, including any amendment or
reports subsequently filed by the Registrant for the purpose of updating that
description. All documents subsequently filed by Registrant pursuant to Sections
13(a), 14, or 15(d) of the Exchange Act, 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 in this Registration Statement and to be part hereof
from the date of filing such documents.
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 Delaware General Corporation Law ("DGCL") provides that a Delaware
corporation, such as the Registrant, may indemnify a director or officer against
his or her expenses and judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with any action, suit or proceeding (other
than an action by or in the right of the corporation) involving such person by
reason of the fact that such person is or was a director or
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officer, concerning actions taken in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of the corporation and,
with respect to any criminal action or proceeding, if such director or officer
had no reasonable cause to believe his or her conduct was unlawful.
The DGCL also provides that in a derivative action, a Delaware
corporation may indemnify its directors and officers against expenses actually
and reasonably incurred to the extent that such director or officer acted in
good faith and in a manner such director or officer reasonably believed to be in
or not opposed to the best interests of the corporation, except that no
indemnification may be made with respect to any claim, issue or matter as to
which such director or officer is adjudged to be liable to the corporation
unless and only to the extent that the court determines upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such director or officer is fairly and reasonably entitled to
indemnity for such expenses which the court deems proper.
In either of the two preceding cases, if the director or officer is
successful on the merits or otherwise in defense of the action, suit or
proceeding, or in defense of a claim, issue or matter therein, the DGCL requires
a Delaware corporation to indemnify the director or officer against expenses
actually and reasonably incurred by him or her in connection therewith.
The DGCL also generally permits the advancement of a director's or
officer's expenses.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
may not eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the DGCL (which relates to
liability for unauthorized acquisitions or redemptions of, or dividends on,
capital stock) or (iv) for any transaction from which the director derived an
improper personal benefit.
Article X of Registrant's Certificate of Incorporation, as amended,
implements the foregoing provisions and provides as follows:
ARTICLE X
INDEMNIFICATION/LIMITATION OF LIABILITY
1. The corporation shall indemnify its directors, officers,
employees, fiduciaries, and agents to the full extent permitted by the
Delaware General Corporation Law as it may be amended from time to
time.
2. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, and any procedure provided for
by any of the foregoing, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall
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<PAGE> 4
continue as to a person who has ceased to be a director, officer,
employee, fiduciary or agent and shall inure to the benefit of heirs,
executors, and administrators of such a person.
3. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee,
fiduciary or agent of the corporation or who is or was serving at the
request of the corporation as a director, officer, employee, fiduciary
or agent of another corporation, partnership, joint venture, trust, or
other enterprise against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under provisions of this Article.
4. To the maximum extent permitted by Section 102(b)(7) of the
General Corporation Law of Delaware, a director of this corporation
shall not be personally liable to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit.
In addition, Article Six of Registrant's Bylaws implements the
foregoing provisions and provides as follows:
ARTICLE VI
Indemnification of Certain Persons
Section 1. Indemnification Against Third Party Claims. Any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he
is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified by the
corporation against expenses (including attorneys, fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted
in good faith and, in the case of conduct in his official capacity, in
a manner he reasonably believed to be in the best interests of the
corporation or, in all other cases, in a manner that was at least not
opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
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Section 2. Indemnification Against Derivative Claims. Any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, OFFICER, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be
indemnified by the corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith
and, in the case of conduct in his official capacity, in a manner he
reasonably believed to be in the best interests of the corporation or,
in all other cases, in a manner that was at least not opposed to the
corporation's best interests; but no indemnification shall be made in
connection with a proceeding in which such person has been adjudged to
be liable to the corporation.
Section 3. Indemnification Against Claims Involving - Improper
Personal Benefit. Notwithstanding the provisions of Sections 1 and 2 of
this Article VI, no indemnification shall be made to any director in
connection with any proceeding charging improper personal benefit to
the director, whether or not involving action in his official capacity,
in which he was adjudged liable on the basis that he or she derived an
improper personal benefit.
Section 4. Rights to Indemnification. To the extent that a
director, officer, employee or agent of the corporation has been
successful on the merits in defense of any action, suit or proceeding
referred to in Section 1, 2 or 3 of this Article VI or in defense of
any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith without the necessity of any action
being taken by the corporation other than the determination in good
faith that such defense has been successful. In all other cases, any
indemnification under Section 1, 2 or 3 of this Article VI (unless
ordered by a Court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in this
Article VI. Such determination shall be made by (a) the board of
directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (b) if a quorum
cannot be obtained, by a majority vote of a committee of the board
designated by the board, which committee shall consist of two or more
directors not parties to the proceeding, except that directors who are
parties to the proceeding may participate in the designation of
directors for the committee, or (c) if the quorum cannot be obtained or
the committee cannot be established under Subsection (b) of this
Section 4 or, even if a quorum is obtained or a committee designated,
if a majority of the directors constituting such quorum or committee so
directs, the determination required to be made by this Section 4 shall
be made by (i) independent legal counsel selected by a vote of the
board of directors or the committee in the manner specified in i
Subsection (b) or (c) of this Section 4 or, if a quorum of the full
board cannot be obtained and a
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committee cannot be established, by independent legal counsel selected
by a majority of the full board or (ii) by the shareholders.
Section 5. Indemnification by Court Order. A director,
officer, employee or agent who is or was a party to a proceeding may
apply for indemnification to the court conducting the proceeding or to
another court of competent jurisdiction. On receipt of an application,
the court, after giving any notice the court considers necessary, may
order indemnification in the following manner: (a) if it determines the
person is entitled to mandatory indemnification under Section 4 of this
Article VI, the court shall order indemnification, in which case the
court shall also order the corporation to pay the person's reasonable
expenses incurred to obtain court-ordered indemnification; or (b) if it
determines that the person is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or
not he met the standard of conduct set forth in Section 1 or 2 of this
Article VI or was adjudged liable on the circumstances described in
Section 2 or 3 of this Article VI, the court may order such
indemnification as the court deems proper; except that the
indemnification with respect to any proceeding in which liability shall
have been adjudged in the circumstances described in Section 2 or 3 of
this Article VI is limited to reasonable expenses incurred in
connection with the proceeding and reasonable expenses incurred to
obtain court-ordered indemnification.
Section 6. Effect of Termination of Action. The termination of
any action, suit or proceeding by judgment, order, settlement or
conviction or upon a plea of nolo contendere or its equivalent shall
not of itself create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he
reasonably believed to be in the best interests of the corporation and,
with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful. Entry of a judgment by
consent as part of a settlement shall not be deemed a final
adjudication of liability, nor of any other issue or matter.
Section 7. Advance of Expenses. Expenses (including attorneys'
fees) incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized in Section
4 of this Article VI if: (a) the director, officer, employee or agent
furnishes the corporation a written affirmation of his good-faith
belief that he has met the standard of conduct described in Sections 1
and 2 of this Article VI, (b) the director, officer, employee or agent
furnishes the corporation a written undertaking, executed personally or
on his behalf, to repay the advance if it is determined that he did not
meet such standard of conduct and (c) a determination is made that the
facts then known to those making the determination would not preclude
indemnification under this Article VI.
Section 8. Other Indemnification Rights. The indemnification
provided hereby shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any bylaw, agreement,
vote of shareholders or
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disinterested directors, or otherwise, and any procedure provided for
by any of the foregoing, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of heirs, executors
and administrators of such a person. However, the indemnification
provisions provided hereby or otherwise concerning the corporation's
indemnification of or advance for expenses to directors (except for
insurance policies) shall be valid only if and to the extent the
provision is consistent with the provisions of Section 145 of the
Delaware General Corporation Law.
Section 9. Report to Shareholders. Any indemnification of or
advance of expenses to a director in accordance with this Article VI,
if arising out of a proceeding by or on behalf of the corporation,
shall be reported in writing to the shareholders with or before the
notice of the next shareholders' meeting. If the next shareholder
action is taken without a meeting at the instigation of the board of
directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such
action.
The Registrant also has entered into indemnification agreements with
each of its directors and executive officers. All of those agreements contain
identical substantive terms and generally require the Registrant to indemnify
and advance expenses to the director or executive officer party thereto whenever
such indemnification or advancement is permitted under the DGCL.
Pursuant to the Enterprise Software, Inc. 1998 Employee Stock Option
Plan, no member of the Registrant's Compensation Committee, which administers
the Plan, is liable for any action or determination made by him in good faith.
Also pursuant to such Plan, the Company is required to indemnify and hold
harmless each member of that Committee from and against any cost, liability or
expense imposed or incurred in connection with that person's or the Committee's
taking or failing to take any action under the Plan.
The Registrant maintains insurance on a regular basis (and not
specifically in connection with this offering) against liabilities arising on
the part of directors and officers out of their performance in such capacities
or arising on the part of the Registrant out of the foregoing indemnification
provisions, subject to certain exclusions and to the policy limits.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
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ITEM 8. EXHIBITS.
The following exhibits are furnished with this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
(4)(a) Registrant's Certificate of Incorporation (Incorporated by reference to Exhibit 3.1 of
Registration Statement on Form S-3 (File No. 333-1205))
(4)(b) Amendment to Registrant's Certificate of Incorporation (Incorporated by reference to Exhibit (4)(b)
of Registration Statement on Form S-8 (File No. 333-71787))
(4)(c) Certificate of Designation of Series A Preferred Stock (Incorporated by reference to
Exhibit 4.1 of Registration Statement on Form S-3 (File No. 333-1205))
(4)(d) Certificate of Designation of Series B Preferred Stock (Incorporated by reference to Exhibit (4)(d)
of Registration Statement on Form S-8 (File No. 333-71787))
(4)(e) Certificate of Designation of Series C Preferred Stock (Incorporated by
reference to Appendix A of Proxy Statement (File No. 333-1205))
(4)(f) Registrant's Bylaws (Incorporated by reference to Exhibit No. 3.2 of Registration
Statement on Form S-3 (File No. 333-1205))
(5) Miller, Canfield, Paddock and Stone, P.L.C. opinion and consent (Incorporated by reference to Exhibit
(5) of Registration Statement on Form S-8 (File No. 333-71787))
(23)(a) Consent of KPMG LLP
(23)(b) Consent of BDO Seidman, LLP (Incorporated by reference to Exhibit (23)(b) of Registration Statement on
Form S-8 (File No. 333-71787))
(23)(c) Consent of Miller, Canfield, Paddock and Stone, P.L.C. (included in exhibit
(5))
(24) Powers of attorney (Incorporated by reference to Exhibit (24) of Registration Statement on Form S-8 (File
No. 333-71787))
</TABLE>
ITEM 9. UNDERTAKINGS.
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;
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<PAGE> 9
(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 information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference into
the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, 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 Livonia, Michigan, on January 27, 1999.
ENTERPRISE SOFTWARE, INC.
By /s/ Andre A. Blay
--------------------------------
Andre A. Blay
Chief Executive Officer
and Chairman of the Board
S-1
<PAGE> 11
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on the dates indicated below.
<TABLE>
<S> <C> <C>
/s/ Andre A. Blay Chief Executive Officer and February 8, 1999
- ---------------------------------- Chairman of the Board
Andre A. Blay of Directors
* Chief Financial Officer (principal February 8, 1999
- ---------------------------------- Financial officer and principal
David Martin Accounting officer)
* Director February 8, 1999
- ----------------------------------
H. Bradley Eden
* Director February 8, 1999
- ----------------------------------
Robert Beauregard
* Director February 8, 1999
- ----------------------------------
Richard L. Schleufer
* Director February 8, 1999
- ----------------------------------
Joseph J. Porfeli
</TABLE>
*By: /s/ Andre A. Blay
-------------------------------
Andre A. Blay, as attorney-in-fact
<PAGE> 12
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
(4)(a) Registrant's Certificate of Incorporation (Incorporated by reference to Exhibit 3.1 of
Registration Statement on Form S-3 (File No. 333-1205))
(4)(b) Amendment to Registrant's Certificate of Incorporation (Incorporated by reference to Exhibit (4)(b)
of Registration Statement on Form S-8 (File No. 333-71787))
(4)(c) Certificate of Designation of Series A Preferred Stock (Incorporated by reference to
Exhibit 4.1 of Registration Statement on Form S-3 (File No. 333-1205))
(4)(d) Certificate of Designation of Series B Preferred Stock (Incorporated by reference to Exhibit (4)(d)
of Registration Statement on Form S-8 (File No. 333-71787))
(4)(e) Certificate of Designation of Series C Preferred Stock (Incorporated by
reference to Appendix A of Proxy Statement (File No. 333-1205))
(4)(f) Registrant's Bylaws (Incorporated by reference to Exhibit No. 3.2 of Registration
Statement on Form S-3 (File No. 333-1205))
(5) Miller, Canfield, Paddock and Stone, P.L.C. opinion and consent (Incorporated by reference to Exhibit
(5) of Registration Statement on Form S-8 (File No. 333-71787))
(23)(a) Consent of KPMG LLP
(23)(b) Consent of BDO Seidman, LLP (Incorporated by reference to Exhibit (23)(b) of Registration Statement on
Form S-8 (File No. 333-71787))
(23)(c) Consent of Miller, Canfield, Paddock and Stone, P.L.C. (included in exhibit
(5))
(24) Powers of attorney (Incorporated by reference to Exhibit (24) of Registration Statement on Form S-8 (File
No. 333-71787))
</TABLE>
E-1
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EXHIBIT 23(a)
The Board of Directors
Enterprise Software, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 to be filed by Enterprise Software, Inc. of our report dated May 29, 1998,
relating to the consolidated balance sheet of Enterprise Software, Inc. as of
March 31, 1998 and the related consolidated statements of operations, changes
in stockholders' equity, and cash flows for the year then ended, which report
appears in the March 31, 1998 annual report on Form 10-KSB of Enterprise
Software, Inc.
KPMG LLP
/s/ KPMG LLP
Detroit, Michigan
February 8, 1999
