<PAGE>
As filed with the Securities and Exchange Commission on August 20, 1998
Registration No. 333-06053
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ROSS SYSTEMS, INC.
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-2170198
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(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
Two Concourse Parkway, Suite 800
Atlanta, Georgia 30328
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
The Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
(800) 677-3394
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
COPY TO:
Robert B. Jack, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Approximate date of commencement of proposed sale to the public under
this Registration Statement: As soon as practicable after this
Registration Statement becomes effective.
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/
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 THAT SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS
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
PROSPECTUS SUPPLEMENT
ROSS SYSTEMS, INC.
EXPLANATORY NOTE
This Pre-Effective Amendment No. 3 (the "Amendment") to that certain
Registration Statement on Form S-3 (File No. 333-06053) (the "Registration
Statement") is being filed pursuant to Rule 414 under the Securities Act of
1933, as amended (the "Act"), by Ross Systems, Inc., a Delaware corporation
("Ross Delaware" or the "Company"), which is the successor to Ross Systems,
Inc., a California corporation ("Ross California"), following a statutory
merger effective on June 25, 1998 (the "Merger") for the purpose of changing
Ross California's state of incorporation. Prior to the Merger, Ross Delaware
had no assets or liabilities other than nominal assets or liabilities. In
connection with the Merger, Ross Delaware succeeded by operation of law to
all of the assets and liabilities of Ross California. The Merger was
approved by the shareholders of Ross California at a meeting for which
proxies were solicited pursuant to Section 14(a) of the Securities Exchange
Act of 1934, as amended (the "1934 Act").
Except as modified by this Amendment, Ross Delaware, by virtue of this
Amendment, expressly adopts the Registration Statement as its own
registration statement for all purposes of the Act and the 1934 Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
In addition to the documents which have been incorporated by reference
by Ross California and made a part of the Prospectus, the following
documents, which have been filed with the Securities and Exchange Commission
(the "Commission"), are incorporated by reference and made a part of this
Prospectus:
Current Report on Form 8-K/A filed July 23, 1998.
The description of the Company's Common Stock contained in the Company's
Current Report on Form 8-K filed on 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 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.
<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 registration or qualification under the securities laws of any such State.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 15 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation of the Company eliminates the liability of
directors to the Company 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 Company 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 Company 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 Company's Bylaws provide that the Company shall indemnify its
directors and officers and may indemnify its employees and other agents to
the fullest extent permitted by law. The Company believes that
indemnification under its Bylaws covers at least negligence and gross
negligence on the part of indemnified parties. The Company's Bylaws also
permit the Company 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 Company would have the power to
indemnify him or her against such liability under the General Corporation Law
of Delaware. The Company currently has secured such insurance on behalf of
its officers and directors.
The Company has entered into agreements to indemnify its directors and
officers, in addition to indemnification provided for in the Company's
Bylaws. Subject to certain conditions, these agreements, among other things,
indemnify the Company's directors and officers for certain expenses
(including 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 Company, arising out of such person's services as a director
or officer of the Company, any subsidiary of the Company or any other company
or enterprise to which the person provides services at the request of the
Company.
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ITEM 16 EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
NUMBER EXHIBIT DESCRIPTION
4.1(1) Certificate of Incorporation of the Company, as currently in effect.
4.2(1) Bylaws of the Company, as currently in effect.
4.3 Fourth Article of Certificate of Incorporation (included in Exhibit
4.1 above).
4.4 Specimen of the Company's Common Stock Certificate.
5.1 Opinion of Counsel as to validity of the Shares.
23.1 Consent of Counsel (included in Exhibit 5.1 above).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.3 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.4 Consent of KPMG, Independent Auditors.
24.1 Power of Attorney (included on the Signature page to this
Amendment).
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(1) Incorporated by reference to the exhibit filed with the Company's Current
Report on Form 8-K Filed July 24, 1998.
II-2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this Pre-effective Amendment No. 3 to its
Registration Statement on Form S-3 (No. 333-06053) to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Atlanta,
Georgia, on this 20th day of August, 1998.
ROSS SYSTEMS, INC.
By: /s/ Dennis V. Vohs
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Dennis V. Vohs
Chairman of the Board and Chief Executive Officer
(Principal Executive Officer)
(Duly Authorized Officer)
Pursuant to the requirements of the Securities Act, this Pre-Effective
Amendment No. 3 to the Registration Statement on Form S-3 (No. 333-06053) has
been signed by the following persons in the capacities and on the dates
indicated.
SIGNATURE TITLE DATE
Chairman of the Board and Chief August 20, 1998
/s/ Dennis V. Vohs Executive Officer (Principal
- ----------------------- Executive Officer)
(Dennis V. Vohs)
/s/ Robert B. Webster Vice President, Chief Financial August 20, 1998
- ----------------------- Officer (Principal Financial and
(Robert B. Webster) Accounting Officer) and
Secretary
* J. William Goodhew Director August 20, 1998
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(J. William Goodhew)
* Mario M. Rosati Director August 20, 1998
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(Mario M. Rosati)
* Bruce J. Ryan Director August 20, 1998
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(Bruce J. Ryan)
* J. Patrick Tinley Director August 20, 1998
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(J. Patrick Tinley)
*By: /s/ Dennis V. Vohs
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Dennis V. Vohs
(Attorney-In-Fact)
II-3
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EXHIBIT INDEX
NUMBER EXHIBIT DESCRIPTION
4.4 Specimen of the Company's Common Stock Certificate.
5.1 Opinion of Counsel as to validity of the Shares.
23.1 Consent of Counsel (included in Exhibit 5.1, above).
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.3 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.4 Consent of KPMG, Independent Auditors.
II-4
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EXHIBIT 4.4
SPECIMEN OF THE COMPANY'S COMMON STOCK CERTIFICATE
(FRONT)
FBU
THIS CERTIFICATE IS TRANSFERABLE IN
BOSTON, MA OR NEW YORK, NY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
SEE REVERSE FOR CERTAIN DEFINITIONS AND A STATEMENT AS TO THE RIGHTS,
PREFERENCES, PRIVILEGES AND RESTRICTIONS OF SHARES
CUSIP 778303 10 7
This Certifies that is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, $0.001 PAR VALUE, OF
ROSS SYSTEMS, INC.
transferable on the books of the Corporation by the holder hereof in person
or by duly authorized Attorney upon surrender of this certificate properly
endorsed. This certificate is not valid until countersigned and registered by
the Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Dated
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED:
BankBoston, N.A.
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
(BACK)
A statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights as established, from time to time, by the
Certificate of Incorporation of the Corporation and by any certificate of
designation, and the number of shares constituting each class and series and
the designations thereof, may be obtained by the holder hereof upon request
and without charge from the Corporation at its principal office.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM = as tenants in common
TEN ENT = as tenants by the entireties
JT TEN = as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT = ...........Custodian ......................
(Cust) (Minor)
under Uniform Gifts to Minors
Act........................................
(State)
UNIF TRF MIN ACT = .......... Custodian (until age ...........)
(Cust)
....................under Uniform Transfers
(Minor)
to Minors Act..............................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
Shares of the capital stock represented by the within
Certificate, and do hereby irrevocably constitute and appoint
Attorney to transfer the said stock on the books of the
within named Corporation with full power of substitution in the premises.
Dated
NOTICE:
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
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EXHIBIT 5.1
<TABLE>
<CAPTION>
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
<S> <C>
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811 JOHN ARNOT WILSON
RETIRED
</TABLE>
August 20, 1998
Ross Systems, Inc.
Two Concourse Parkway, Suite 800
Atlanta, Georgia 30328
RE: REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-06053)
Gentlemen & Ladies:
We have examined the Pre-effective Amendment No. 3 to the Registration
Statement on Form S-3 to be filed by you with the Securities and Exchange
Commission (the "Registration Statement") in connection with your adoption of
the registration under the Securities Act of 1933, as amended, of shares of
your Common Stock (the "Shares") registered under the Registration Statement
on Form S-3 (No. 333-06053). As your counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the issuance and
sale of the Shares in the manner set forth in the Registration Statement.
It is our opinion that, when issued and sold in the manner set forth in
the Registration Statement, the Shares will be legally and validly issued,
fully-paid and non-assessable.
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 and any amendments thereto.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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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(A)(File No. 333-06053) 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
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
reference to our Firm under the caption "Experts."
/s/ PRICEWATERHOUSECOOPERS L.L.P.
PricewaterhouseCoopers L.L.P.
Atlanta, Georgia
August 14, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Ross Systems, Inc.:
We consent to incorporation by reference in the pre-effective amendment no. 3
to 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 10-K of Ross Systems, Inc., and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Mountain View, California
August 14, 1998
<PAGE>
EXHIBIT 23.4
The Board of Directors
Ross Systems, Inc.
We consent to incorporation by reference in pre-effective amendment no. 3 to
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, 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 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
August 14, 1998
