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As filed with the Securities and Exchange Commission on January 22, 1999
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ROSS SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7372 94-2170198
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD (I.R.S. EMPLOYER
OF INCORPORATION OR INDUSTRIAL CLASSIFICATION IDENTIFICATION NUMBER)
ORGANIZATION) CODE NUMBER)
TWO CONCOURSE PARKWAY
SUITE 800
ATLANTA, GA 30328
(770) 351-9600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1991 EMPLOYEE STOCK PURCHASE PLAN
1998 INCENTIVE STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
DENNIS V. VOHS
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
ROSS SYSTEMS, INC.
TWO CONCOURSE PARKWAY
SUITE 800
ATLANTA, GA 30328
(770) 351-9600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE
AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
COPY TO:
MARIO M. ROSATI, 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: As soon as
practicable after the effective date of this Registration Statement.
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, check the following box. / /
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED AMOUNT OF
AMOUNT MAXIMUM MAXIMUM REGISTRATION
TO BE OFFERING AGGREGATE FEE
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE
<S> <C> <C> <C> <C>
1991 Employee Stock Purchase Plan Common Stock, 150,000 $3.6125 $ 541,875.00 $ 150.64
$0.001 par value (1)
1998 Incentive Stock Option Plan Common Stock, 1,000,000 $4.25 $4,250,000.00 $1,181.50
$0.001 par value (2)
TOTAL REGISTRATION FEES $1,332.14
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(1) The shares covered by this Registration Statement represent shares of
Common Stock which have become available for issuance under the
Registrant's 1991 Employee Stock Purchase Plan as a result of an amendment
approved by the shareholders at the Registrant's Annual Meeting held on
November 18, 1998 increasing the number of shares authorized for issuance
thereunder by 150,000. The Proposed Maximum Offering Price Per Share has
been estimated in accordance with Rule 457(h) under the Securities Act of
1933 solely for the purpose of calculating the registration fee. The
computation is based upon 85% (see explanation in the following sentence)
of the average of the high and low price of Registrant's Common Stock as
reported on the Nasdaq National Market System on January 15, 1999 because
the price at which the options to be granted in the future is not currently
determinable. Pursuant to the 1991 Employee Stock Purchase Plan, the
Purchase Price of a share of Common Stock shall mean an amount equal to 85%
of the Fair Market Value of a share of Common Stock on the Enrollment Date
or the Exercise Date, whichever is lower.
(2) The shares covered by this Registration Statement represent shares of
Common Stock which have become available for issuance under the
Registrant's 1998 Incentive Stock Option Plan as a result of an amendment
approved by the shareholders at the Registrant's Annual Meeting held on
November 18, 1998 increasing the number of shares authorized for issuance
thereunder by 1,000,000. The Proposed Maximum Offering Price Per Share has
been estimated in accordance with Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee. The
computation is based upon the average of the high and low price of
Registrant's Common Stock as reported on the Nasdaq National Market System
on January 15, 1999 because the price at which the options to be granted
in the future is not currently determinable.
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ROSS SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
(a) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act on March 22, 1991.
(b) The Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 1998.
(c) The Registrant's quarterly report on Form 10-Q for the quarter
ended September 30, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act") on or after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
Item 4. DESCRIPTION of SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
As of the date hereof, certain members of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, hold options to purchase 30,000 shares of the
Registrant's Common Stock. Mario M. Rosati, a member of such firm, is a
Director and Assistant Secretary of the Registrant.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has adopted provisions in its Certificate of Incorporation
that eliminate the personal liability of its directors and officers for monetary
damages arising from a breach of their fiduciary duties in certain circumstances
to the fullest extent permitted by law and authorizes the Registrant to
indemnify its directors and officers to the fullest extent permitted by law.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware, including circumstances in which indemnification is
otherwise discretionary under Delaware law. Section 145 of the General
Corporation Law of Delaware provides for the indemnification of officers,
directors and other corporate
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agents in terms sufficiently broad to indemnify such persons, under certain
circumstances, for certain liabilities (including reimbursement of expenses
incurred) arising under the Securities Act of 1933, as amended (the
"Securities Act"). The Registrant has entered into indemnification
agreements to such effect with its officers and directors containing
provisions which are in some respects broader than the specific
indemnification provisions contained in the General Corporation Law of
Delaware. The indemnification agreements may require the Company, among
other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as directors
or officers (other than liabilities arising from willful misconduct of a
culpable nature) and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as part
hereof, or incorporated by reference into, this Registration Statement. (See
Index below).
Item 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
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Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant, Ross Systems, Inc., certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto, duly authorized, in the City of Atlanta, State of
Georgia, on January 22, 1999.
ROSS SYSTEMS, INC.
By: /s/ DENNIS V. VOHS
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Dennis V. Vohs,
Chairman of the Board and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dennis V. Vohs and Robert B. Webster,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities to sign any amendments to
this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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Signature Title Date
<S> <C> <C>
/s/ DENNIS V. VOHS Chairman of the Board, Chief Executive Officer January 22, 1999
- ------------------------- and Director (Principal Executive Officer)
(Dennis V. Vohs)
/s/ ROBERT B. WEBSTER Vice President, Finance and Administration, January 22, 1999
- ------------------------- Chief Financial Officer (Principal Financial
(Robert B. Webster) and Accounting Officer) and Secretary
Director
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(J. William Goodhew)
/s/ MARIO M. ROSATI Director January 22, 1999
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(Mario M. Rosati)
Director
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(Bruce J. Ryan)
/s/ J. PATRICK TINLEY President, Chief Operating Officer and Director January 22, 1999
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(J. Patrick Tinley)
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ROSS SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
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EXHIBIT
NO. DESCRIPTION
<S> <C>
5.1 Opinion of counsel as to legality of securities being
registered.
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 counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (included in Registration Statement on
page 6).
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EXHIBIT 5.1
January 22, 1999
Ross Systems, Inc.
Two Concourse Parkway
Suite 800
Atlanta, GA 30328
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended, of the 1991
Employee Stock Purchase Plan (as to 150,000 shares) and the 1998 Incentive
Stock Option Plan (as to 1,000,000 shares) (collectively the "Plans" and
"Shares" as appropriate). As legal counsel for Ross Systems, Inc., we have
examined the proceedings taken and are familiar with the proceedings proposed
to be taken by you in connection with the sale and issuance of the Shares
pursuant to the Plans.
It is our opinion that, upon completion of the proceedings to be taken
prior to issuance of the shares pursuant to the Prospectus constituting part
of the Registration Statement on Form S-8 and upon completion of the
proceedings being taken in order to permit such transactions to be carried
out in accordance with the securities laws of the various states where
required, the shares, when issued and sold in the manner referred to in the
Plan and the agreements which accompany the Plan, and in accordance with the
Company's Articles of Incorporation, will be legally and validly issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said Registration
Statement and further consent to the use of our name wherever appearing in
said Registration Statement, and amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
August 17, 1998 included in Ross Systems, Inc.'s Form 10-K for the year ended
June 30, 1998 and to all references to our Firm included in this Registration
Statement.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
January 20, 1999
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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-8 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 for the year ended June 30, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Atlanta, Georgia
January 18, 1999
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EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Ross Systems, Inc.:
We consent to the incorporation by reference in this registration
statement on Form S-8 of Ross Systems, Inc. (the "Company") of our report
dated September 26, 1996 relating to the combined balance sheets of Ross
Systems (UK) Limited, Ross Systems France SA., Ross Systems Deutschland GmbH,
Ross Systems Europe NV., and Ross Systems Netherlands BV as of June 30, 1996
and the related combined statements of operations and stockholder's 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
January 18, 1999
