<PAGE>
As filed with the Securities and Exchange Commission on September 30, 1998
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ROSS SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 94-2170198
--------------------- ---------------
(STATE OR OTHER JURISDICTION OF (I.R.S EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2 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)
-----------------------
DENNIS V. VOHS
CHIEF EXECUTIVE OFFICER
ROSS SYSTEMS, INC.
2 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)
-----------------------
COPIES TO:
MARIO M. ROSATI, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
-----------------------
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. / / _______________
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. / / _________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Title of Each Proposed Maximum
Class of Maximum Aggregate Amount of
Securities to Amount to be Offering Price Offering Price Registration
be Registered Registered Per Share (1) (1) Fee
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par 466,808
value shares $2.59375 $1,210,783.25 $358.00
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</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457. Based on the last reported sale
price on September 28, 1998.
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>
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>
SUBJECT TO COMPLETION
DATED SEPTEMBER 30, 1998
PROSPECTUS
466,808 SHARES
ROSS SYSTEMS, INC.
COMMON STOCK
This Prospectus relates to the offering by certain investors (the
"Selling Shareholders") of shares of Common Stock, $0.001 par value (the
"Shares") issued by Ross Systems, Inc. (the "Company" or "Ross"). The Shares
may be sold from time to time through brokers, to dealers acting as
principals, directly to purchasers in negotiated transactions, or any
combination of these methods of sale. In addition, shares may be transferred
in connection with the settlement of call options, short sales or similar
transactions that may be effected by the Selling Shareholders. Sales may be
made at prevailing market prices at the time of such sales, at prices related
to such prevailing prices, at fixed prices that may be changed or at
negotiated prices. See "Selling Shareholders" and "Plan of Distribution."
None of the proceeds from the sale of the Shares by the Selling
Shareholders will be received by the Company. The Company has agreed to bear
all expenses (other than selling commissions) in connection with the
registration and sale of the Shares being offered by the Selling
Shareholders. The Company has agreed to indemnify the Selling Shareholders
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended (the "Securities Act").
In connection with any sales, the Selling Shareholders and any brokers
participating in such sales may be deemed to be "underwriters" within the
meaning of the Securities Act. See "Selling Shareholders."
The Common Stock is traded on the Nasdaq National Market System under the
symbol "ROSS."
THE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS,"
COMMENCING ON PAGE 4.
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 September ___, 1998.
<PAGE>
AVAILABLE INFORMATION
As used in this Prospectus, unless the context otherwise requires, the
terms "Ross" 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, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports and proxy
statements and other 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, 7 World Trade Center,
Suite 1300, New York, New York 10048; 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. In
addition, the Commission maintains a World Wide Web site that contains
reports, proxy and information statements and other information regarding
registrants that filed electronically with the Commission. The address of
the site is http://www.sec.gov.
The Company's Common Stock is traded on the Nasdaq National Market.
Reports and other information concerning the Company may be inspected at the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
This Prospectus constitutes part of a Registration Statement on Form S-3
(herein, together with all amendments and exhibits thereto, referred to as
the "Registration Statement") filed by the Company with the Commission 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 hereby 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:
Annual Report on Form 10-K for the fiscal year ended June 30, 1998 (the
"Form 10-K Report") filed September 28, 1998.
Current Report on Form 8-K filed July 2, 1998.
Current Report on Form 8-K/A filed July 23, 1998.
Current Report on Form 8-K filed July 24, 1998.
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
-2-
<PAGE>
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 2 Concourse Parkway,
Suite 800, Atlanta, Georgia 30328, telephone (770) 351-9600, attention:
Chief Financial Officer.
-3-
<PAGE>
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.
HISTORY OF LOSSES. In each of fiscal 1994, 1995, 1996 and 1997 the
Company incurred operating losses and net losses. In the fiscal year ended
June 30, 1998, the Company operated profitably. There can be no assurance
that the Company will be profitable in the future. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations--Results of Operations" in the Company's Form 10-K Report and Form
10-Q Reports.
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. 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. 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 1998 through the date of this prospectus, the market prices
of the Common Stock have ranged from a high of $5.41 to a low of $2.00.
LIQUIDITY AND CAPITAL RESOURCES. In fiscal 1997 and 1998, the Company
used cash of $7.1 million and provided cash of $0.6 million, respectively,
for operations and for investments in capitalized software, property and
equipment. At June 30, 1998, the Company had cash deposits of $7.2 million
and total borrowings of $3.8 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. Based on eligible accounts receivable at June 30, 1998, the
Company's borrowing power under the revolving credit facility, combined with
the Company's cash and cash equivalents, was $16.1 million.
In fiscal 1995, 1996, 1997 and 1998, the Company issued equity
securities to finance its operations. These issuances have increased the
number of Common and Common equivalent shares outstanding by approximately
51% since the end of fiscal 1995. On February 6, 1998, the Company entered
into an agreement with certain qualified investors relating to a private
placement of convertible subordinated debentures (the "Debentures") in the
aggregate principal amount of up to $10,000,000 pursuant to Regulation D
promulgated under the Securities Act of 1933, as amended. The investors (the
"Investors") invested $6,000,000 at the closing on February 6, 1998, and
invested $4,000,000 on June 16, 1998 (the "Second Closing"). Substantially
all of proceeds from the Debenture financing have been used to improve the
Company's balance sheet and lower its debt service expense. To date, the
Company has issued
-4-
<PAGE>
235,605 shares of Common Stock upon conversion of the Debentures and the
interest accrued thereon which have increased the number of common and common
equivalent shares outstanding by approximately 1.1% since the end of June
1998. Because the number of shares of Common Stock issuable by the Company
upon conversion of the Debentures and the interest accrued thereon is based
on conversion formulae which are set forth in the Debentures issued on
February 6, 1998 and June 16, 1998 (collectively, the "Aggregate Debentures")
and therefore is not fixed, it is not possible to determine the increase in
the number of shares of common and Common Stock equivalent shares outstanding
as a result of the issuance of such shares of Common Stock issuable by the
Company upon conversion of the Debentures and the interest accrued thereon.
However, the percentage increase could be greater than 20%. On September 18,
1998, the Company notified the Investors that Ross will redeem the Second
Closing Debentures for the redemption price of $4,320,000 (108% of the face
amount of the Second Closing Debentures) on October 7, 1998.
INTERNATIONAL SALES. The Company derived approximately 31%, 33% and 31%
of its total revenues from international sales in fiscal 1996, 1997 and 1998,
respectively, and expects that such sales will continue to generate a
significant percentage of total revenues. Pacific Rim software product
license revenues were $4.1 million and $3.2 million for fiscal year 1997 and
the period from July 1, 1997 to March 31, 1998, respectively. Pacific Rim
software product license revenue is heavily concentrated with 58%, or $2.5
million, of the 1998 total with one distributor in Japan. There can be no
assurance that this distributor will continue to distribute the Company's
products beyond fiscal year 1999. 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 and the
Form 10-Q Reports.
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.
-5-
<PAGE>
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; and business applications software
providers in vertical markets that offer products that compete with the
Company's process manufacturing products, such as J.D. Edwards & Company,
Marcam Solutions, Inc., QAD, Inc. and System Software Associates, 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.
DEPENDENCE ON AND RELATIONSHIP WITH MICROSOFT. A significant portion of
the Company's total revenues are derived from business application software
products and related services for users of client/server computers. The
Company's business therefore depends to a large extent on the success of
client/server computers in the commercial marketplace. In particular, the
Company believes that Microsoft's NT operating system plays and will continue
to play an important role in the client/server market as the operating system
secures a majority of new installations in the client/server environment due
to its low cost and ease of use. The Company's business would be materially
and adversely affected if commercial market share for client/server computers
declined or if their installed customer base in this market eroded. The
Company considers its close relationship with Microsoft in software product
development activities to be strategic to the Company's business. The Company
would be materially and adversely affected if Microsoft decided to terminate
or significantly reduce its cooperation with the Company in these development
activities, or to market products competitive with the Company's products.
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.
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 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
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<PAGE>
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.
SHARES ELIGIBLE FOR FUTURE SALE. Depending upon the date on which the
Aggregate Debentures are converted and the market price for the Common Stock
on such date, the number of shares of Common Stock issuable upon conversion
of the Aggregate Debentures and the interest accrued thereon could represent
a significant percentage of the outstanding shares of the Company's Common
Stock. Sale of shares of Common Stock issuable upon conversion of the
Aggregate Debentures and the interest accrued thereon or the sale of shares
of Common Stock after this offering in the public market could materially
adversely affect the market price of the Company's Common Stock.
ANTI-TAKEOVER EFFECT OF PREFERRED SHARES RIGHTS PLAN AND CERTAIN CHARTER
AND BYLAW PROVISIONS. In September 1998, the Company's Board of Directors
adopted a Preferred Shares Rights Plan. The Preferred Shares Rights Plan
provides for a dividend distribution of one Preferred Shares Purchase Right
(a Right) on each outstanding share of the Company's Common Stock. Each
Right entitles stockholders to buy 1/1000th of a share of the Company's
Series B Participating Preferred Stock at an exercise price of $21.75. The
Rights will become exercisable following the tenth day after a person or
group announces acquisition of 15% or more of the Company's Common Stock, or
announces commencement of a tender offer, the consummation of which would
result in ownership by the person or group of 15% or more of the Company's
Common Stock. The Company will be entitled to redeem the Rights at $0.01 per
Right at any time on or before the tenth day following acquisition by a
person or group of 15% or more of the Company's Common Stock.
The Preferred Shares Rights Plan and certain provisions of the Company's
Certificate of Incorporation and Bylaws may have the effect of making it more
difficult for a third party to acquire, or of discouraging a third party from
attempting to acquire control of the Company. This could limit the price
that certain investors might be willing to pay in the future for shares of
the Company's Common Stock. Certain provisions of the Company's Certificate
of Incorporation and Bylaws allow the Company to issue preferred stock
without any vote or further action by the stockholders, eliminate the right
of stockholders to act by written consent without a meeting, specify
procedures for director nominations by stockholders and submission of other
proposals for consideration at stockholder meetings, and eliminate cumulative
voting in the election of directors. Certain provisions of Delaware law
applicable to the Company could also delay or make more difficult a merger,
tender offer or proxy contest involving the Company, including Section 203,
which prohibits a Delaware corporation from engaging in any business
combination with any interested stockholder for a period of three years
unless certain conditions are met. The Preferred Shares Rights Plan, the
possible issuance of Preferred Stock, the procedures required for director
nominations and stockholder proposals and Delaware law could have the effect
of delaying, deferring or preventing a change in control of the Company,
including without limitation, discouraging a proxy contest or making more
difficult the acquisition of a substantial block of the Company's Common
Stock. These provisions could also limit the price that investors might be
willing to pay in the future for shares of the Company's Common Stock.
ABSENCE OF DIVIDENDS. The Company has never declared or paid any cash
dividends and does not anticipate paying cash dividends in the foreseeable
future.
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<PAGE>
SELLING SHAREHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership by the Selling Shareholders of shares of the Company's
Common Stock. The shares offered by this Prospectus are being acquired by the
Selling Shareholders from the Company in consideration of the exchange of all
outstanding shares of HiPoint Systems, Inc. Neither of the Selling Shareholders
is an executive officer or director of the Company or beneficially owns as much
as 3% of the outstanding shares of Common Stock of the Company. The Selling
Shareholders may choose to sell less than all or none of the shares of Common
Stock offered hereby.
<TABLE>
<CAPTION>
SHARES OWNED SHARES OWNED
BEFORE SHARES AFTER
NAME OFFERING(1) OFFERED OFFERING(2)
- ----------------------------------- ------------- --------- -------------
<S> <C> <C> <C>
Rising Point Systems Corporation . 420,124 420,124 0
Jill Smith . . . . . . . . . . . . 46,684 46,684 0
</TABLE>
__________________________
(1) Includes shares held in escrow and subject to potential reduction.
(2) Assumes all shares offered by this Prospectus are sold.
PLAN OF DISTRIBUTION
The sale of all or a portion of the shares of Common Stock offered
hereby by the Selling Shareholders may be effected from time to time at
prevailing market prices at the time of such sales, at prices related to such
prevailing prices, at fixed prices that may be changed or at negotiated
prices. The Selling Shareholders may effect such transactions by selling
directly to purchasers in negotiated transactions, to dealers acting as
principals or through one or more brokers, or any combination of these
methods of sale. In addition, shares may be transferred in connection with
the settlement of call options, short sales or similar transactions that may
be effected by the Selling Shareholders. Dealers or brokers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Shareholders. The Selling Shareholders and any brokers or dealers
that participate in the distribution may under certain circumstances be
deemed to be "underwriters" within the meaning of the Securities Act, and any
commissions received by such brokers or dealers and any profits realized on
the resale of shares by them may be deemed to be underwriting discounts and
commissions under the Securities Act. The Company and the Selling
Shareholders may agree to indemnify such brokers or dealers against certain
liabilities, including liabilities under the Securities Act.
To the extent required under the Securities Act or the rules of the
Commission, a supplemental prospectus will be filed, disclosing (a) the name of
any such brokers or dealers, (b) the number of shares involved, (c) the price at
which such shares are to be sold, (d) the commissions paid or discounts or
concessions allowed to such brokers or dealers, where applicable, (e) that such
brokers or dealers did not conduct any investigation to verify the information
set out or incorporated by reference in this prospectus, as supplemented, and
(f) other facts material to the transaction.
There is no assurance that any of the Selling Shareholders will sell any or
all of the shares of Common Stock offered hereby.
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<PAGE>
The Company has agreed to pay the expenses incurred in connection with the
registration of the shares of Common Stock offered hereby. The Selling
Shareholders will be responsible for all selling commissions, transfer taxes and
related charges in connection with the offer and sale of such shares.
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 sheet as of June 30, 1998, the related
consolidated statements of operations, shareholders' equity, and cash flows
for the year then ended and schedules, incorporated by reference in this
Prospectus and Registration Statement from the Company's 1998 Annual Report
on Form 10-K, have been audited by Arthur Andersen LLP, independent public
accountants, and are incorporated herein in reliance upon the authority of
said firm as experts in giving said report.
The consolidated balance sheets as of June 30, 1997 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 1998 Annual Report on Form 10-K,
have been incorporated herein in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given upon the authority
of that firm as experts in accounting and auditing.
-9-
<PAGE>
No dealer, salesperson or other person has been authorized in connection
with any offering made hereby to give any information or to make any
representations other than those contained in or incorporated by reference in
this Prospectus, and, if given or made, such information or representations
must not be relied upon as having been authorized. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any security
other than the securities offered hereby, nor do they constitute an offer to
sell or a solicitation of any offer to buy any of the securities offered
hereby to any person in any jurisdiction in which such offer or solicitation
would be unlawful or to any person to whom it is unlawful. Neither the
delivery of this Prospectus nor any offer or sale made hereunder shall, under
any circumstances, create any implication that there has been no change in
the affairs of the Company or that the information contained herein is
correct as of any time subsequent to the date hereof.
-----------------
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Information Incorporated by
Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Selling Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
------------------
ROSS SYSTEMS, INC.
---------------------
PROSPECTUS
---------------------
September __, 1998
<PAGE>
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.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee . . . $ 358
Printing and engraving expenses . . . . . . . . . . . . . 4,000
Legal fees and expenses . . . . . . . . . . . . . . . . . 3,500
Accounting fees and expenses . . . . . . . . . . . . . . 14,000
Miscellaneous expenses . . . . . . . . . . . . . . . . . 5,000
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . . $26,858
--------
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation of the Registrant eliminates the liability
of directors to the Registrant for monetary damages for breach of fiduciary duty
as a director to the fullest extent permissible under Delaware law, as such law
exists currently or as it may be amended in the future. Under Delaware law,
such provision may not eliminate or limit director monetary liability for: (a)
breaches of the director's duty of loyalty to the Registrant or its
stockholders; (b) acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law; (c) the payment of unlawful dividends
or unlawful stock repurchases or redemptions; or (d) transactions in which the
director received an improper personal benefit. Such limitation of liability
provisions also may not limit a director's liability for violation of, or
otherwise relieve the Registrant or its directors from the necessity of
complying with, federal or state securities laws, or affect the availability of
non-monetary remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers and may indemnify its employees and other agents to the
fullest extent permitted by law. The Registrant believes that indemnification
under its Bylaws covers at least negligence and gross negligence on the part of
indemnified parties. The Registrant's Bylaws also permit the Registrant to
secure insurance on behalf of any officer, director, employee or other agent for
any liability arising out of his or her actions in such capacity, regardless of
whether the Registrant would have the power to indemnify him or her against such
liability under the General Corporation Law of Delaware. The Registrant
currently has secured such insurance on behalf of its officers and directors.
The Registrant has entered into agreements to indemnify its directors and
officers, in addition to indemnification provided for in the Registrant's
Bylaws. Subject to certain conditions, these agreements, among other things,
indemnify the Registrant's directors and officers for certain expenses
(including
II-1
<PAGE>
attorney's fees), judgments, fines and settlement amounts incurred by any
such person in any action or proceeding, including any action by or in the
right of the Registrant, arising out of such person's services as a director
or officer of the Registrant, any subsidiary of the Registrant or any other
company or enterprise to which the person provides services at the request of
the Registrant.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
<S> <C>
4.2* Certificate of Incorporation of Registrant
4.3* By-Laws of Registrant
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
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 (included at page II-4)
</TABLE>
* Incorporated by reference to the exhibit filed with the Registrant's
Current Report on Form 8-K dated July 24, 1998.
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 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
II-2
<PAGE>
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
3. That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of Prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of Prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed
to be part of this Registration Statement as of the time it was declared
effective.
4. That, for purposes of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
Prospectus 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.
5. 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 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.
6. 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Atlanta, Georgia, on this 30th day of
September, 1998.
ROSS SYSTEMS, INC.
/s/ ROBERT B. WEBSTER
-------------------------
Robert B. Webster
Vice President, Finance and
Administration, Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints, Dennis V. Vohs and Robert B. Webster, jointly
and severally, his true and lawful attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments
(including post-effective amendments) to this Amendment, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact, 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
connection therewith, as fully as to intents and purposes as he might or
could do in person, 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
- ----------------------- ----------------------------- -------------------
<S> <C> <C>
/s/ DENNIS V. VOHS Chairman of the Board and September 30, 1998
- ------------------------- Chief Executive Officer
(Dennis V. Vohs) (Principal Executive Officer)
/s/ROBERT B. WEBSTER Vice President, Finance and September 30, 1998
- ------------------------- Administration, Chief
(Robert B. Webster) Financial Officer (Principal
Financial and Accounting
Officer) and Secretary
Director
- ------------------------
(J. William Goodhew)
/s/ MARIO M. ROSATI Director September 30, 1998
- ------------------------
(Mario M. Rosati)
/s/ BRUCE J. RYAN Director September 30, 1998
- ------------------------
(Bruce J. Ryan)
/s/ J. PATRICK TINLEY President, Chief Operating September 30, 1998
- ------------------------ Officer and Director
(J. Patrick Tinley)
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibits
<S> <C>
4.2* Certificate of Incorporation of Registrant
4.3* By-Laws of Registrant
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
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 (included at page II-4)
</TABLE>
(*) Incorporated by reference to the exhibit filed with the Registrant's
Current Report on Form 8-K dated July 24, 1998.
<PAGE>
EXHIBIT 5.1
WILSON SONSINI GOODRICH & ROSATI LETTERHEAD
September 30, 1998
Ross Systems, Inc.
Two Concourse Parkway
Suite 800
Atlanta, GA 30328
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have examined 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 PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our firm) included in or made part of this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Atlanta, Georgia
September 28, 1998
<PAGE>
EXHIBIT 23.2
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
schedule of Ross Systems, Inc. as of June 30, 1997 and for the years ended
June 30, 1997 and 1996, which report is included in the Company's Annual
Report on Form 10-K for the year ended June 30, 1998. We also consent to the
reference to our Firm under the caption "Experts."
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Atlanta, Georgia
September 30, 1998
<PAGE>
EXHIBIT 23.3
The Board of Directors
Ross Systems, Inc.
We consent to incorporation by reference in this registration statement of
Ross Systems, Inc. ("the Company") on Form S-3 of our report dated September
26, 1996 relating to the combined balance sheets of Ross Systems (UK)
Limited, Ross Systems France S.A., Ross Systems Deutschland GmbH, Ross
Systems Europe N.V., and Ross Systems Netherlands BV as of June 30, 1996 and
the related combined statements of operations and stockholders' equity for
the year then ended and the related schedule, which report appears in the
June 30, 1998, 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 summarising the
Company's operating, investing and financing activities is required by
generally accepted accounting principles.
/s/ KPMG
KPMG
CHARTERED ACCOUNTANTS
REGISTERED AUDITORS
BRISTOL, UNITED KINGDOM
September 29, 1998
