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As filed with the Securities and Exchange Commission on September 30, 1997
Registration No. 333-________
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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
------------------------
ROSS SYSTEMS, INC.
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 94-2170198
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(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
1100 Johnson Ferry Road
Atlanta, GA 30342
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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1991 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
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Dennis V. Vohs
Chairman of the Board and
Chief Executive Officer
ROSS SYSTEMS, INC.
1100 Johnson Ferry Road
Atlanta, GA 30342
(404) 851-1872
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------
COPY TO:
Robert B. Jack
Wilson, Sonsini, Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
<S> <C> <C> <C> <C>
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Common Stock, no par value,
to be issued pursuant to
Registrant's 1991 Employee
Stock Purchase Plan,
as amended: 150,000 $3.041 $456,195 $138.24
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(1) The shares covered by this Registration Statement represent shares of
Common Stock which have become available for issuance under the
Registrant's 1991 Employee Stock Purchase Plan as a result of an amendment
approved by the shareholders at the Registrant's Annual Meeting held on
November 20, 1996 increasing the number of shares authorized for issuance
thereunder by 150,000.
(2) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee based on 85% of the average of high and low sales prices
of Registrant's Common Stock as reported by the Nasdaq National Market
System on September 29, 1997
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ROSS SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed March 22,
1991;
(b) Current Report on Form 8-K filed August 19, 1997;
(c) Annual Report on Form 10-K for the fiscal year ended
June 30, 1997;
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act on or after the date of this Registration Statement
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 in this
Registration Statement and to be part hereof from the date of filing of such
documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has adopted provisions in its Articles of Incorporation and
Bylaws that limit the liability of its directors. As permitted by the
California Corporations Code, directors will not be liable to the Company for
monetary damages arising from a breach of their fiduciary duty as directors,
including such conduct during a merger or tender offer, in certain
circumstances. Such limitation does not affect liability for any breach of a
director's duty to the Company or its shareholders (i) with respect to
approval by the director of any transaction from which he derives an improper
personal benefit, (ii) with respect to acts or omissions involving an absence
of good faith, that he believes to be contrary to the best interests of the
Company or its shareholders, that involve intentional misconduct or a knowing
and culpable violation of law, that constitute an unexcused pattern of
inattention that amounts to an abdication of his duty to the Company or its
shareholders in circumstances in which he was, or should have been aware, in
the ordinary course of performing his duties, of a risk of serious injury to
the Company or its shareholders, or (iii) based on transactions between the
Company and its directors or another corporation with interrelated directors
or based on improper distributions, loans or guarantees under applicable
sections of the California Corporations Code. Such limitation of liability
also does not affect the availability of equitable remedies such as
injunctive relief or rescission.
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to officers
and directors in terms sufficiently broad to permit such indemnification
under certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933, as amended. The
Company's Articles of Incorporation authorize the Company to indemnify the
Company's officers and directors. The Company's Bylaws provide that the
Company shall indemnify its directors and officers to the fullest extent
permitted by California law, including circumstances in which indemnification
is otherwise discretionary under California law. The Company has entered
into indemnification agreements with its officers and directors containing
provisions which are in some respects broader than the specific
indemnification provisions contained in the California Corporations Code.
The indemnification agreements may require the Company, among other things,
to indemnify them against certain liabilities that may arise by reason of
their status or service as directors or officers, to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified, and to obtain directors' and officers' insurance if available on
reasonable terms.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
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Item 8. EXHIBITS.
Exhibit
Number Description
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5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.3 Consent of KPMG, Independent Auditors.
23.4 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-6).
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 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.
(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.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
II-3
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C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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.
II-4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Ross Systems, Inc., 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 Atlanta, State of
Georgia, on September 29, 1997.
ROSS SYSTEMS, INC.
By: /s/ DENNIS V. VOHS
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Dennis V. Vohs,
Chairman of the Board and
Chief Executive Officer
II-5
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dennis V. Vohs and Stan F.
Stoudenmire, jointly and severally, his attorneys-in-fact, each with the
power of substitution, for him in any and all capacities to sign any
amendments to this Registration Statement on Form S-8, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ DENNIS V. VOHS Chairman of the Board and Chief Executive
- ----------------------- Officer (Principal Executive Officer) September 29, 1997
(Dennis V. Vohs)
/s/ STAN F. STOUDENMIRE Vice President, Finance and
- ----------------------- Administration, Chief Financial September 29, 1997
(Stan F. Stoudenmire) Officer (Principal Financial and
Accounting Officer) and Secretary
/s/ MARIO M. ROSATI Director September 29, 1997
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(Mario M. Rosati)
/s/ BRUCE J. RYAN Director September 29, 1997
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(Bruce J. Ryan)
/s/ J. PATRICK TINLEY President, Chief Operating Officer and Director September 29, 1997
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(J. Patrick Tinley)
</TABLE>
II-6
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ROSS SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
NO.
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5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.3 Consent of KPMG, Independent Auditors
23.4 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (included in Registration Statement on page II-6).
<PAGE>
EXHIBIT 5.1
September 29, 1997
Ross Systems, Inc.
Two Concourse Parkway
Suite 800
Atlanta, GA 30328
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission in connection with the registration
under the Securities Act of 1933, as amended, of 150,000 shares of Common Stock
reserved for issuance under the 1991 Employee Stock Purchase Plan, as amended
(the "Plan"). As your legal counsel, we have examined the proceedings taken and
are familiar with the proceedings proposed to be taken by you in connection with
the sale and issuance of said shares.
It is our opinion that, upon completion of the proceedings to be taken
prior to issuance of the shares pursuant to the Prospectus constituting part of
the Registration Statement on Form S-8 and upon completion of the proceedings
being taken in order to permit such transactions to be carried out in accordance
with the securities laws of the various states where required, the shares, when
issued and sold in the manner referred to in the Plan and the agreements which
accompany the Plan, and in accordance with the Company's Articles of
Incorporation, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said Registration
Statement and further consent to the use of our name wherever appearing in said
Registration Statement, and amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of Ross Systems, Inc. on Form S-8 of our report dated August 21,
1997, on our audit of the consolidated financial statements and financial
statement schedules of Ross Systems, Inc. as of June 30, 1997 and 1996, and
for the years ended June 30, 1997 and 1996, which report is included in the
Company's Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
Atlanta, Georgia
September 26, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Ross Systems, Inc.:
We consent to incorporation by reference in the registration statement
on Form S-8 of Ross Systems, Inc. of our report dated August 18, 1995, except
as to Note 14, which is as of September 18, 1996, relating to the
consolidated statements of operations, shareholders' equity, and cash flows
for the year ended June 30, 1995, of Ross Systems, Inc. and subsidiaries, and
the related schedule, which report appears in the June 30, 1997, annual
report on Form 10-K of Ross Systems, Inc.
/s/ KPMG Peat Marwick LLP
San Jose, California
September 26, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Ross Systems, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-8 of Ross Systems, Inc. ("the Company") of our report dated September
26, 1996 relating to the combined balance sheets of Ross Systems (UK)
Limited, Ross Systems France SA, Ross Systems Deutschland GmbH, Ross Systems
Europe NV., and Ross Systems Netherlands BV as of June 30, 1996 and the
related combined statements of operations and shareholders' equity for the
year then ended and the related schedule, which report appears in the June
30, 1997, annual report on Form 10-K of the Company.
Our report dated September 26, 1996 contains an explanatory paragraph that
states that the Company declined to present a statement of cash flows for the
year ended June 30, 1996. Presentation of such statement summarizing the
Company's operating, investing and financing activities is required by
generally accepted accounting principles.
/s/ KPMG
CHARTERED ACCOUNTANTS
REGISTERED AUDITORS
BRISTOL, UNITED KINGDOM
June 1997
