<PAGE>
As filed with the Securities and Exchange Commission on September 30, 1997
Registration No. 333-06053
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ROSS SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
California 94-2170198
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
TWO CONCOURSE PARKWAY
SUITE 800
ATLANTA, GA 30328
(770) 351-9600
(Address, including zip code and telephone number, including area code, of
Registrant's principal executive offices)
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DENNIS V. VOHS
CHIEF EXECUTIVE OFFICER
ROSS SYSTEMS, INC.
TWO CONCOURSE PARKWAY
SUITE 800
ATLANTA, GA 30328
(770) 351-9600
(Name, address, including zip code and telephone number, including area
code, of agent for service)
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COPIES TO:
ROBERT B. JACK, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time as the Selling Shareholders may decide.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION
DATED SEPTEMBER 30, 1997
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to the registration or qualification under the securities laws of any such
State.
<PAGE>
400,000 SHARES
ROSS SYSTEMS, INC.
COMMON STOCK
Ross Systems, Inc. (the "Company") may from time to time offer up to an
aggregate of 400,000 shares of its Common Stock (the "Securities"). The
Securities offered pursuant to this Prospectus may be issued at prices and on
terms to be determined at the time of sale. The accompanying Prospectus
Supplement sets forth with regard to the Securities in respect of which this
Prospectus is being delivered the number of shares and the terms of the offering
thereof.
The Company may sell Securities to or through underwriters or directly to
other purchasers or through agents. The accompanying Prospectus Supplement sets
forth the names of any underwriters or agents involved in the sale of the
Securities in respect of which this Prospectus is being delivered, the number of
shares, as applicable, if any, to be purchased by the underwriters and the
compensation, if any, of such underwriters or agents.
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS," COMMENCING
ON PAGE 3.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is ________________, 1997
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AVAILABLE INFORMATION
As used in this Prospectus, unless the context otherwise requires, the
terms "Ross Systems" and the "Company" mean Ross Systems, Inc. and its
subsidiaries. The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports and proxy information filed
with the Commission pursuant to the informational requirements of the Exchange
Act may be inspected and copied at the public reference facilities maintained by
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the following regional offices of the Commission: New York Regional Office,
75 Park Place, 14th Floor, New York, New York 10007; and Chicago Regional
Office, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates.
The Company also has filed with the Commission a Registration Statement
(together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the securities offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the Registration
Statement, copies of which may be obtained from the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, upon payment of
the fees prescribed by the Commission. Statements contained in this Prospectus
as to the contents of any contract or any other document filed, or incorporated
by reference, as an exhibit to the Registration Statement, are qualified in all
respects by such reference.
INFORMATION INCORPORATED BY REFERENCE
The following documents, previously filed by the Company with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference,
except as superseded or modified herein:
The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A filed March 22, 1991.
Current Report on Form 8-K filed August 19, 1997.
Annual Report on Form 10-K for the fiscal year ended June 30, 1997.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of this offering shall be deemed to be incorporated by reference
into this Prospectus and shall be part hereof from the date of filing of such
document. Any statement contained in any document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference in this Prospectus modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any document described above (other than exhibits). Requests
for such copies should be directed to the Corporate Secretary of Ross Systems,
Inc. at its principal offices located at Two Concourse Parkway, Suite 800,
Atlanta, Georgia 30328, telephone (770) 351-9600, attention: Corporate
Secretary.
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RISK FACTORS
An investment in the shares being offered by this Prospectus involves a
high degree of risk. The following factors, in addition to those discussed
elsewhere in this Prospectus, should be carefully considered in evaluating the
Company and its business prospects before purchasing shares offered by this
Prospectus. This Prospectus contains forward-looking statements which involve
risks and uncertainties. The Company's actual results could differ materially
from those anticipated in these forward-looking statements as a result of
certain factors, including those set forth in the following risk factors and
elsewhere in this Prospectus.
REVENUE DECLINES AND OPERATING LOSSES. While the Company's total
revenues declined from fiscal 1995 to 1996, software product license revenues
increased in fiscal 1995, 1996 and 1997. In each of these fiscal years, the
Company incurred an operating loss. However, there can be no assurance that
revenue increases will be sustained. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Results of
Operations -- Revenues" in the Company's Form 10-K Report incorporated herein
by reference. See "Information Incorporated by Reference."
FLUCTUATIONS IN OPERATING RESULTS. The Company has experienced
significant quarterly fluctuations in operating results and anticipates that
such fluctuations may occur in the future. See quarterly financial
information contained in Note 15 to the Consolidated Financial Statements in
the Form 10-K Report incorporated herein by reference. Quarterly revenues
depend on the volume and timing of orders received during the quarter, which
are difficult to forecast. The Company generally ships orders as received
and, as a result, typically has little or no backlog. Historically, the
Company has often realized a substantial portion of its software product
license revenues in the last two weeks of a quarter. Due to the Company's
relatively low cost of incremental software product license revenues, any
shortfall or delay in software product license revenues has an immediate and
substantial impact on profitability in the quarter. The Company has
experienced lengthening sales cycles, which have further impacted its
quarterly results. Operating results may also fluctuate due to factors such
as the demand for the Company's products, the size and timing of customer
orders, the introduction of new products and product enhancements by the
Company or its competitors, changes in the proportion of revenues
attributable to software product licenses versus consulting and other
services, changes in the level of operating expenses, and competitive
conditions in the industry. Many of the factors that could result in
quarterly fluctuations are not within the Company's control. Fluctuations in
operating results may result in volatility in the price of the Company's
Common Stock. During the period including fiscal 1996 and 1997 through the
date of this prospectus, the market prices of the Common Stock have ranged
from a high of $9.75 to a low of $1.75.
LIQUIDITY AND CAPITAL RESOURCES. In fiscal 1996 and 1997, the Company
used cash of $12.4 million and $7.1 million, respectively, for operations and
for investments in capitalized software, property and equipment. At June 30,
1997, the Company had $4.010 million of cash and cash equivalents and total
borrowings of $11.657 million against a $15 million revolving credit
facility. Borrowings under the revolving credit facility are collateralized
by substantially all of the assets of the Company and availability is based
on eligible accounts receivable, as determined in the lender's sole
discretion. Primarily as a result of losses and payments of approximately
$5.6 million associated with the settlement of two lawsuits, the Company
issued equity securities in fiscal 1995, 1996 and 1997, to finance its
operations. These issuances have increased the number of Common and Common
equivalent shares outstanding by approximately 53% since the end of fiscal
1995. The Company believes that additional equity or debt issuances will be
necessary or advisable to finance the growth of the business. There can be
no assurance that any such financing could be made on favorable terms.
INTERNATIONAL SALES. The Company derived approximately 33%, 31%, and
33% of its total revenues from international sales in fiscal 1995, 1996 and
1997, respectively, and expects that such sales will continue to generate a
significant percentage of total revenues. To date, the Company has not
sought to hedge the risks associated with currency fluctuations, but may
engage in such transactions in the future in order to reduce its exposure to
currency fluctuations. The Company is also subject to other risks associated
with international operations, including tariff regulations, unexpected
changes in regulatory requirements, longer accounts receivable payment
cycles, potentially adverse tax consequences, economic and political
instability, restrictions on repatriation of earnings, and the burdens of
complying with a wide variety of foreign laws. There can be no assurance
that such factors will not have a material adverse effect on the Company's
future international sales and, consequently, on the Company's business,
financial condition and results of operations. See "Business -- Marketing
and Sales" in the Form 10-K Report and "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Results of Operations" in
the Form 10-K Report incorporated herein by reference.
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RAPID TECHNOLOGICAL CHANGE; PRODUCT TRANSITIONS. The market for the
Company's products is characterized by ongoing technological developments,
evolving industry standards and rapid changes in customer requirements. As a
result, the Company's prospects depend upon its ability to continue to enhance
its existing products, develop and introduce in a timely manner new products
that take advantage of technological advances, and respond to new customer
requirements. There can be no assurance that the Company will be successful in
developing and marketing enhancements to its existing products or new products
incorporating new technology on a timely basis, or that its new products will
adequately address the changing needs of its markets. If the Company is unable
to develop and introduce new products, or enhancements to existing products, in
a timely manner in response to changing market conditions or customer
requirements, the Company's business and results of operations will be
materially and adversely affected. From time to time, the Company or its
competitors may announce new products, capabilities or technologies that have
the potential to replace or shorten the life cycles of the Company's existing
products. There can be no assurance that announcements of currently planned or
other new products will not cause customers to defer purchasing existing Company
products. Delays or difficulties associated with new product introductions or
product enhancements could have a material adverse effect on the Company's
business, financial condition and results of operations. Software products as
complex as those offered by the Company may contain undetected errors when first
introduced or as new versions are released. There can be no assurance that
errors will not be found in new products after commencement of commercial
shipments, resulting in a loss of or delay in market acceptance. See "Business
- -- Competition" in the Form 10-K Report incorporated herein by reference.
COMPETITION. The business applications software market is intensely
competitive. Due to the breadth of the Company's product line, it competes
with a broad range of applications software companies. The Company's primary
competitors include the following: business application software providers
which offer products on multiple platforms, such as Baan Company NV, Oracle
Corporation, PeopleSoft, Inc. and SAP AG; business application software
providers that have ported their software from the IBM mainframe environment,
such as Dun and Bradstreet Software; and business applications software
providers in vertical markets that offer products that compete with the
Company's process manufacturing products, such as Marcam Solutions, Inc. In
the human resource market, the Company competes with various business
applications software providers, including PeopleSoft, Inc. Additionally, the
Company faces competition from third-party business application processing
providers operating on minicomputers such as the IBM AS/400. Many of the
Company's competitors have substantially greater financial, technical,
marketing and sales resources than the Company. See "Business -- Competition"
in the Form 10-K Report incorporated herein by reference.
DEPENDENCE ON AND RELATIONSHIP WITH DEC, HP AND IBM. A significant portion
of the Company's total revenues are derived from business application software
products and related services for users of DEC, HP and IBM computers. The
Company's business therefore depends to a large extent on the success of DEC, HP
and IBM computers in the commercial marketplace. The Company's business would
be materially and adversely affected if DEC's, HP's or IBM's share of the
commercial market declined or if their installed customer base in this market
eroded. The Company considers its close relationships with DEC, HP and IBM in
marketing, sales and software product development activities to be strategic to
the Company's business. The Company would be materially and adversely affected
if DEC, HP or IBM decided to terminate or significantly reduce its cooperation
with the Company in these activities, or to market products competitive with the
Company's products. See "Business -- Marketing and Sales" in the Form 10-K
Report incorporated herein by reference.
KEY EMPLOYEES. The Company's success depends on a number of its key
employees, most of whom are not subject to employment contracts. The loss of
the services of these key employees could have a material adverse effect on the
Company. The Company believes that its future success will also depend in large
part on its ability to attract and retain highly-skilled technical, managerial
and marketing personnel. Competition for such personnel in the software
industry is intense, and there can be no assurance that the Company will be
successful in attracting and retaining such personnel. See "Business --
Employees" in the Form 10-K Report incorporated herein by reference.
DEPENDENCE ON PROPRIETARY TECHNOLOGY; RISK OF TECHNOLOGY LITIGATION.
The Company's success is dependent upon its proprietary technology and
products. The Company regards its software as proprietary and, to date, has
relied principally upon copyrights, trademarks, trade secrets and contractual
restrictions to protect its proprietary technology. The Company currently
has no patents. The Company generally enters into confidentiality agreements
with employees and confidentiality and license agreements with its
distributors, customers and potential customers, and limits access to and
distribution of the source code to its software and other proprietary
information. Under some circumstances, the Company grants licenses that give
limited access to the source code
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of the Company's products which increases the likelihood of misappropriation
or misuse of the Company's technology. Accordingly, despite precautions
taken by the Company, it may be possible for unauthorized third parties to
copy certain portions of the Company's technology or to obtain and use
information that the Company regards as proprietary. There can be no
assurance that the steps taken by the Company will be adequate to prevent
misappropriation of its technology or to provide an adequate remedy in the
event of a breach by others. In addition, the laws of some foreign countries
do not protect the Company's proprietary rights to the same extent as do the
laws of the United States.
There has been substantial industry litigation regarding intellectual
property rights of technology companies. Although the Company is not aware of
any infringement by its products of any patents or proprietary rights of others,
patent protection for software is still a developing area of law. The Company
has, in the past, been subject to litigation related to alleged infringement by
the Company of a third party's rights, which resulted not only in the Company
incurring significant legal fees and settlement costs but also in a substantial
diversion of management attention and a loss of software product license
revenues due to prospective customer concerns related to such litigation. In
the future, the Company may be subject to additional litigation to defend the
Company against claimed infringement of the rights of others or to determine the
scope and validity of the proprietary rights of others. Any such litigation
could be costly and cause diversion of management's attention, either of which
could have a material adverse affect on the Company's business, results of
operations and financial condition. Adverse determinations in such litigation
could result in the loss of the Company's proprietary rights, subject the
Company to significant liabilities, require the Company to seek licenses from
third parties or prevent the Company from manufacturing or selling its products,
any one of which could have a material adverse effect on the Company's business,
financial condition and results of operations. Furthermore, there can be no
assurance that any necessary licenses will be available on reasonable terms, or
at all. See "Business -- Proprietary Rights and Licenses" in the Form 10-K
Report incorporated herein by reference.
USE OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of securities hereby for
working capital and general corporate purposes. Pending such uses, the Company
intends to invest the net proceeds in investment grade, interest-bearing
securities.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through one or more underwriters or
directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Securities for whom
they may act as agents in form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents, that participate in the distribution
of Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions under the
Securities Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company will be described, in the applicable
Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
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LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon by
Wilson, Sonsini, Goodrich & Rosati, Professional Corporation, Palo Alto,
California.
EXPERTS
The consolidated balance sheets as of June 30, 1997 and 1996 and the
related consolidated statements of operations, shareholders' equity, and cash
flows for the years then ended, incorporated by reference in this Prospectus
and Registration Statement from the Company's 1997 Annual Report on Form
10-K, have been incorporated herein in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given upon the authority of that
firm as experts in accounting and auditing.
The combined balance sheets of Ross Systems (UK) Ltd., Ross Systems
France S.A., Ross Systems Deutschland GmbH, Ross Systems Europe N.V., and
Ross Systems Nederland B.V. (the "Foreign Entities") as of June 30, 1996 and
the related combined statements of operations and shareholders' equity for
the year then ended and the related schedule serve as the basis for the
related amounts included in the consolidated financial statements that have
been incorporated by reference in this Prospectus and Registration Statement.
Insofar as amounts indicated in the consolidated financial statements relate
to the Foreign Entities as of June 30, 1996 and for the year then ended, such
amounts have been included in reliance upon the report of KPMG, independent
auditors, incorporated by reference in this Prospectus and Registration
Statement, and upon the authority of said firm as experts in accounting and
auditing.
The Consolidated Financial Statements and Schedule of the Company for
the year ended June 30, 1995, have been incorporated by reference in this
Prospectus and Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent auditors, incorporated by reference in this
Prospectus and Registration Statement, and upon the authority of said firm as
experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered. All of the amounts
shown are estimates except the Securities and Exchange Commission registration
fee.
Securities and Exchange Commission
registration fee . . . . . . . . . . . . . . . . . . . . . . . . . . 863
Printing and engraving expenses. . . . . . . . . . . . . . . . . . . 750
Legal fees and expenses. . . . . . . . . . . . . . . . . . . . . . . 8,500
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . 7,250
Miscellaneous expenses . . . . . . . . . . . . . . . . . . . . . . . 637
-------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $18,000
-------
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Fourth Article of the Registrant's Restated Articles of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under California law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the corporation if
such person acted in good faith and in a manner reasonably believed to be in and
not opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to believe
his conduct was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, and intends to enter into indemnification
agreements with any new directors and executive officers in the future.
ITEM 16. EXHIBITS
4.2* Articles of Incorporation of Registrant, as amended
4.3** By-Laws of Registrant, as amended
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C.
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
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23.4 Consent of Wilson, Sonsini, Goodrich & Rosati, P.C. (included in
Exhibit 5.1)
24.1+ Power of Attorney
+ Previously filed.
* Incorporated by reference to the exhibit filed with Registrant's December
31, 1995 Form 10-Q Report, as amended by the exhibits filed by the
Registrant's Current Report on Form 8-K dated February 13, 1996.
** Incorporated by reference to the exhibit filed with Registrant's Annual
Report on Form 10-K filed September 27, 1993.
*** Supercedes exhibit previously filed.
ITEM 17. UNDERTAKINGS
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 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 of controlling persons 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.
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;
(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 subparagraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by those
subparagraphs 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 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.
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.
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SIGNATURES
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-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on this 29th day of
September 1997.
ROSS SYSTEMS, INC.
/s/ STAN F. STOUDENMIRE
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Stan F. Stoudenmire
Vice President, Finance and Administration, Chief
Financial Officer
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-3, as amended, 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 by the following persons in the
capacities indicated on the date signed by the Company:
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ DENNIS V. VOHS Chairman of the Board and Chief Executive Officer September 29, 1997
- ------------------------- (Principal Executive Officer)
(Dennis V. Vohs)
/s/ STAN F. STOUDENMIRE Vice President, Finance and Administration, Chief September 29, 1997
- ------------------------- Financial Officer (Principal Financial and Accounting
(Stan F. Stoudenmire) Officer) and Secretary
/s/ MARIO M. ROSATI September 29, 1997
- ------------------------- Director
(Mario M. Rosati)
/s/ BRUCE J. RYAN September 29, 1997
- ------------------------- Director
(Bruce J. Ryan)
/s/ J. PATRICK TINLEY
- ------------------------- President, Chief Operating Officer and Director September 29, 1997
(J. Patrick Tinley)
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibits
4.2(A) Restated Articles of Incorporation of Registrant
4.3(B) By-Laws of Registrant
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C.
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 Wilson, Sonsini, Goodrich & Rosati, P.C.
(included in Exhibit 5.1)
24.2* Power of Attorney
(A) Incorporated by reference to the exhibit filed with Registrant's December
31, 1995 Form 10-Q Report, as amended by the exhibits filed by the
Registrant's Current Report on Form 8-K dated February 13, 1996.
(B) Incorporated by reference to the exhibit filed with Registrant's Annual
Report on Form 10-K filed September 27, 1993.
* Previously filed.
** Supercedes exhibit previously filed.
II-4
<PAGE>
Exhibit 5.1
[WILSON SONSINI GOODRICH & ROSATI LETTERHEAD]
September 29, 1997
Ross Systems, Inc.
Two Concourse Parkway
Suite 800
Atlanta, GA 30328
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have examined Pre-Effective Amendment No. 1 to the Registration
Statement on Form S-3 of Ross Systems, Inc. (the "Company") filed with the
Securities and Exchange Commission (the "Registration Statement") on or about
the date hereof, in connection with the registration under the Securities Act of
1933, as amended, of an offering by the Company pursuant to Rule 415 of shares
of the Company's Common Stock (the "Shares").
It is our opinion that upon issuance of the Shares by the Company in
accordance with the pertinent enabling resolutions of the Board of Directors of
the Company, the Shares will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<PAGE>
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-3 of our report dated August 21, 1997, on our
audits 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. We also consent to the references to our firm
under the caption "Experts".
/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-3 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
10K of Ross Systems, Inc., and to the reference to our firm under the heading
"Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
San Jose, California
September 26, 1997
<PAGE>
EXHIBIT 23.3
Richmond Park House
15 Pembroke Road
Clifton
Bristol BS8 3BG
The Board of Directors
Ross Systems, Inc.
We consent to incorporation by reference in the pre-effective amendment no. 1
to the registration statement on Form S-3 (number 333-06053) 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 10K
of the Company, and to the reference to our firm under the heading "Experts"
in the prospectus.
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
September 25, 1997
