<PAGE>
As filed with the Securities and Exchange Commission on February 6, 1998
Registration No. 333-44363
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
Pre-Effective Amendment No. 1
to
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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CALIFORNIA 94-2170198
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(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:
ROBERT B. JACK, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 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. / /______
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. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
Title of Each Amount to be Proposed Maximum Proposed Maximum
Class of Securities Registered Offering Price Aggregate Amount of
to be Registered Per Share (1) Offering Price (1) Registration Fee (2)
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Common Stock,
no par value 351,450 shares $2.9375 $1,032,384.38 $305.00
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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 February 4, 1998.
(2) In connection with the Registration Statement on Form S-3 (Registration
Number 333-44363) originally filed by the Registrant on January 16,
1998, the Registrant paid to the Commission a filing fee of $257.00.
Therefore, in connection with the filing of this Pre-Effective Amendment
No. 1 to the Registration Statement on Form S-3 (Registration Number
333-44363), the Registrant has paid by wire transfer a filing fee of
$48.00
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 FEBRUARY 6, 1998
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.
351,450 SHARES
ROSS SYSTEMS, INC.
COMMON STOCK
The shares offered by this Prospectus may be sold by certain
shareholders (see "Selling Shareholders") 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. 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 "Plan of Distribution." The Company will not receive any
proceeds from the sale of the shares offered by this Prospectus.
The Company will pay the expenses of this offering (excluding brokerage
commissions), estimated at $26,792.00.
On February 4, 1998, the last sale price of the Common Stock on the
Nasdaq National Market was $2.9375 per share (symbol ROSS).
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.
<PAGE>
The date of this Prospectus is February 6, 1998
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:
Annual Report on Form 10-K for the fiscal year ended June 30, 1997 (the
"Form 10-K Report").
Quarterly Report on Form 10-Q for the quarter ended September 30, 1997
(the "September 30, 1996 Form 10-Q Report").
Current Report on Form 8-K filed January 28, 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
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<PAGE>
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 2 Concourse Parkway,
Suite 800, Atlanta, Georgia 30328, telephone (770)351-9600, attention: Chief
Financial Officer.
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<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. Although in the first
quarter of fiscal 1998 the Company operated profitably, in the second quarter
of fiscal 1998 the Company recorded a net loss. 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 September 30,
1997 Form 10-Q Report.
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. 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 1997 and 1998
through the date of this prospectus, the market prices of the Common Stock
have ranged from a high of $9.625 to a low of $2.00.
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 December
31, 1997, the Company had $2.1 million of cash and cash equivalents and total
borrowings of $11.3 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 September 30, 1997, the Company's
borrowing power under the revolving credit facility was $11.8 million.
Primarily as a result of losses and payments of approximately $5.6 million
associated with
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<PAGE>
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 in the
current fiscal year. 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. Pacific Rim software product
license revenues increased 214% in fiscal 1997 to $2.8 million.
Substantially all Pacific Rim software product license revenues in fiscal
1997 were from a single customer located in Japan. Although this customer
has paid through the current fiscal year, revenues from this customer are
subject to a risk of cancellation in any future fiscal year. 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 September 30, 1997 Form 10-Q
Report.
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
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<PAGE>
shipments, resulting in a loss of or delay in market acceptance. See
"Business -- Competition" in the Form 10-K Report.
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.
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.
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
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<PAGE>
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.
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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 Bizware Corporation. Neither of the Selling
Shareholders is an executive officer or director of the Company or
beneficially owns as much as 1% 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.
SHARES OWNED SHARES OWNED
BEFORE SHARES AFTER
NAME OFFERING (1) OFFERED OFFERING (2)
- --------------------------- ---------------- --------- ------------------
Steven Wasserman . . . . . 351,450 175,725 175,725
Alexander Cooper . . . . . 351,450 175,725 175,725
__________________________
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.
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<PAGE>
There is no assurance that any of the Selling Shareholders will sell any
or all of the shares of Common Stock offered hereby.
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.
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<PAGE>
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, 1996 and 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 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 Consolidated Financial Statements and Schedule of the Company at June
30, 1995 and 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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<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.
Securities and Exchange Commission registration fee. . . 292
Printing and engraving expenses. . . . . . . . . . . . . 4,000
Legal fees and expenses. . . . . . . . . . . . . . . . . 3,500
Accounting fees and expenses . . . . . . . . . . . . . . 14,000
Miscellaneous expenses . . . . . . . . . . . . . . . . . 5,000
-------
Total. . . . . . . . . . . . . . . . . . . . . . . . . $26,792
-------
-------
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.
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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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<PAGE>
23.4 Consent of Wilson, Sonsini, Goodrich & Rosati, P.C. (included in
Exhibit 5.1)
24.1+ Power of Attorney
* 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.
+ Previously filed.
*** Supersedes 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 to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. 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.
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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-4
<PAGE>
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Atlanta, Georgia, on this 5th day of February, 1998.
ROSS SYSTEMS, INC.
/s/ STAN F. STOUDENMIRE
------------------------------------------
Stan F. Stoudenmire
Vice President, Finance and Administration,
Chief Financial Officer
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:
Signature Title Date
- ----------------------- ----------------------------- ------------
/s/ DENNIS V. VOHS Chairman of the Board and February 5,
- ----------------------- Chief Executive Officer 1998
(Dennis V. Vohs) (Principal Executive Officer)
/s/ STAN F. STOUDENMIRE Vice President, Finance and February 5,
- ----------------------- Administration, Chief 1998
(Stan F. Stoudenmire) Financial Officer (Principal
Financial and Accounting
Officer) and Secretary
/s/ J. WILLIAM GOODHEW* Director February 5,
- ----------------------- 1998
(J. William Goodhew)
/s/ MARIO M. ROSATI* Director February 5,
- ----------------------- 1998
(Mario M. Rosati)
Director
- -----------------------
(Bruce J. Ryan)
/s/ J. PATRICK TINLEY* President, Chief Operating February 5,
- ----------------------- Officer and Director 1998
(J. Patrick Tinley)
II-5
<PAGE>
Signature Title Date
- ----------------------- ----------------------------- ------------
*By: /s/ STAN F. STOUDENMIRE February 5,
----------------------- 1998
Stan F. Stoudenmire
(Attorney-in-Fact)
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibits
4.2* Restated Articles of Incorporation of Registrant
4.3** 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
(*) 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.
+ Previously filed.
*** Supersedes exhibit previously filed.
II-7
<PAGE>
EXHIBIT 5.1
WILSON SONSINI GOODRICH & ROSATI LETTERHEAD
February 5, 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 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>
<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(A) 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/ COOPERS & LYBRAND L.L.P.
Atlanta, Georgia
February 4, 1998
<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
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
San Jose, California
February 3, 1998
<PAGE>
EXHIBIT 23.3
The Board of Directors
Ross Systems, Inc.
We consent to incorporation by reference in this pre-effective amendment no.
1 to the registration statement of Ross Systems, Inc. ("the Company") on Form
S-3 (number 333-44363) 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
February 4, 1998
