-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, U3pNiIo26qA2Min6lKoAVsriRU324P1gc3Hqji1/bRqBPsVpSeQRLnooHyMFGURA kt8aTOMjT4hIx4XDv0z7Yg== 0000928385-98-001082.txt : 19980520 0000928385-98-001082.hdr.sgml : 19980520 ACCESSION NUMBER: 0000928385-98-001082 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980519 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOFTWARE AG SYSTEMS INC CENTRAL INDEX KEY: 0000352683 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 541167173 STATE OF INCORPORATION: DE FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: S-1/A SEC ACT: SEC FILE NUMBER: 333-50645 FILM NUMBER: 98627814 BUSINESS ADDRESS: STREET 1: 11190 SUNRISE VALLEY DR CITY: RESTON STATE: VA ZIP: 20191 BUSINESS PHONE: 7038605050 MAIL ADDRESS: STREET 1: 11190 SUNRISE VALLEY DR CITY: RESTON STATE: VA ZIP: 20191 S-1/A 1 AMENDMENT NO.1 TO FORM S-1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 1998 REGISTRATION NO. 333-50645 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION ------------------- AMENDMENT NO. 1 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------- SOFTWARE AG SYSTEMS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ------------------- DELAWARE 5734 54-1167173 (STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.) 11190 SUNRISE VALLEY DRIVE RESTON, VA 20191 (703) 860-5050 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) ------------------- DANIEL F. GILLIS PRESIDENT AND CHIEF EXECUTIVE OFFICER 11190 SUNRISE VALLEY DRIVE RESTON, VA 20191 (703) 860-5050 (NAME AND ADDRESS OF AGENT FOR SERVICE) ------------------- COPIES TO: ROBERT B. OTT, ESQ. PETER B. TARR, ESQ. RICHARD E. BALTZ, ESQ. BRENT B. SILER, ESQ. ARNOLD & PORTER HALE AND DORR LLP 555 TWELFTH STREET, N.W. 1455 PENNSYLVANIA AVENUE, N.W. WASHINGTON, D.C. 20004 WASHINGTON, D.C. (202) 942-5000 (202) 942-8400 ------------------- APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective. 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. [_] 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 this Form is a post-effective amendment filed pursuant to Rule 462(d) 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. [_] 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. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following are the estimated expenses in connection with the issuance and distribution of the securities being registered, all of which will be paid by the Company. SEC registration fee............................................... $ 50,830 NASD filing fee.................................................... $ 17,730 Blue Sky fees and expenses......................................... $ 10,000 Printing and engraving expenses.................................... 200,000 Legal fees and expenses............................................ 75,000 Accounting fees and expenses....................................... 45,000 Transfer agent and registrar fees.................................. 2,500 Miscellaneous...................................................... 25,940 -------- Total............................................................ $427,000 ========
- -------- ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law sets forth conditions and limitations governing the indemnification of officers and directors of the Company and certain other persons. The Company has adopted provisions in its Second Amended and Restated Certificate of Incorporation and Third Amended and Restated Bylaws which provide for indemnification of its officers and directors to the maximum extent permitted under the Delaware General Corporation Law. As authorized by the Delaware General Corporation Law, the Company's Second Amended and Restated Certificate of Incorporation limits the liability of directors of the Company for monetary damages. The effect of this provision is to eliminate the rights of the Company and its stockholders (through stockholders' derivative suits on behalf of the Company) to recover monetary damages against a director for breach of the fiduciary duty of care as a director (including breaches resulting from negligent or grossly negligent behavior) except in certain limited situations. This provision does not limit or eliminate the rights of the Company or any stockholder to seek non-monetary relief such as an injunction or rescission in the event of breach of a director's duty of care. These provisions will not alter the liability of directors under federal securities laws. The Company has purchased an insurance policy which purports to insure the officers and directors of the Company against certain liabilities incurred by them in the discharge of their functions as such officers and directors except for liabilities resulting from their own malfeasance. Under the terms of the Underwriting Agreement, the Underwriters have agreed to indemnify, under certain conditions, the Company, its directors, certain of its officers and persons who control the Company within the meaning of the Securities Act against certain civil liabilities and liabilities arising from breaches of representations and warranties contained in the Underwriting Agreement or the inaccuracy of certain information set forth herein that was provided by the Underwriters. ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES. Prior to February 25, 1997, the Company was an indirect wholly owned subsidiary of SAG and on February 25, 1997, the Company became a direct wholly owned subsidiary of SAG and SAG became the owner of the one then outstanding share of the Company's common stock, par value $1.00 per share. On March 14, 1997, the Company issued a stock dividend to SAG resulting in 100,000 outstanding shares of common stock. On March 31, 1997, the senior management of the Company and Thayer acquired approximately 89% of the then outstanding Common Stock of the Company in the Recapitalization pursuant to an agreement among the Company, SAG, Thayer and the following persons who constituted the senior managers of the Company at II-1 that time: Daniel F. Gillis, Harry K. McCreery, Gary Hayes, James H. Daly, Derek M. Brigden and Thomas E. Gorley (collectively, such individuals are referred to as the "Managers"). In connection therewith, (i) 24,750,000 shares of Common Stock were repurchased by the Company from SAG for an aggregate purchase price of DM 57.0 million (approximately US$33.9 million), (ii) 20,678,350 shares of Common Stock were issued and sold to Thayer for an aggregate purchase price of approximately $30.4 million and (iii) an aggregate of 771,650 shares of Common Stock were issued and sold to the Managers for an aggregate purchase price of approximately $1.1 million. Of the Common Stock purchased by the Managers, Messrs. Gillis and McCreery each purchased 204,050 shares and Messrs. Hayes, Daly, Brigden and Gorley purchased 84,975, 108,625, 67,925 and 102,025 shares, respectively. In consideration for the shares, each of Messrs. Gillis, McCreery and Daly gave the Company a promissory note in an amount sufficient to cover the purchase price of the shares. In consideration for the shares, each of Messrs. Hayes, Brigden and Gorley paid the Company approximately $74,900, $51,000, and $75,000 in cash, respectively, and gave the Company a promissory note in an amount sufficient to cover the balance of the purchase price of the shares. In addition, on August 22, 1997 the Company entered into a subscription agreement with Timothy L. Hill, the Company's Vice President--Marketing, pursuant to which the Company issued and sold to Mr. Hill 137,500 shares of Common Stock for an aggregate purchase price of $202,095. All such shares of Common Stock were issued in private placements exempt from registration under Section 4(2) of the Securities Act. No underwriters were involved in the sales or issuances of the securities described above. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. An index to exhibits appears on page E-1. ITEM 17. UNDERTAKINGS. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (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 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 of 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 that: (1) For purposes of determining any liability under the Securities Act, 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 shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act, 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. II-2 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY CAUSED THIS AMENDMENT NO. 1 TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN RESTON, VIRGINIA ON MAY 19, 1998. Software AG Systems, Inc. /s/ Daniel F. Gillis By: ---------------------------------- DANIEL F. GILLIS DIRECTOR, PRESIDENT AND CHIEF EXECUTIVE OFFICER PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS AMENDMENT NO. 1 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON MAY 19, 1998. /s/ Daniel F. Gillis By: ---------------------------------- DANIEL F. GILLIS DIRECTOR, PRESIDENT AND CHIEF EXECUTIVE OFFICER (PRINCIPAL EXECUTIVE OFFICER) /s/ Harry K. McCreery By: ---------------------------------- HARRY K. MCCREERY VICE PRESIDENT, TREASURER AND CHIEF FINANCIAL OFFICER (PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER) * By: ---------------------------------- CARL J. RICKERTSEN CHAIRMAN OF THE BOARD OF DIRECTORS * By: ---------------------------------- DR. PHILIP S. DAUBER DIRECTOR * By: ---------------------------------- DR. ERWIN KONIGS DIRECTOR * By: ---------------------------------- EDWARD E. LUCENTE DIRECTOR * By: ---------------------------------- DR. PAUL G. STERN DIRECTOR /s/ Harry K. McCreery *By: ----------------------------- HARRY K. MCCREERY ATTORNEY-IN-FACT II-3 INDEX TO EXHIBITS
EXHIBIT NO. ------- ***1 Form of Underwriting Agreement * 3.1 Second Amended and Restated Certificate of Incorporation of the Registrant *** 3.2 Third Amended and Restated Bylaws of the Registrant * 4 Specimen Common Stock Certificate of the Registrant ****5 Opinion of Arnold & Porter regarding the legality of the shares of Common Stock being registered *10.1 Recapitalization Agreement among Software AG, Software AG Systems, Inc., Thayer Equity Investors III, L.P. and certain Managers of Software AG Systems, Inc. (dated as of March 18, 1997) *10.2 Cooperation Agreement between Software AG and Software AG Americas, Inc. (dated as of March 31, 1997) *10.3 Share Purchase Agreement among Software AG Americas, Inc., Software AG (Canada), Inc., Robert D. Nickel and Caelum Investments, Inc. (dated as of September 26, 1997) *10.4 Memorandum of Understanding between Daniel F. Gillis and Software AG Systems, Inc. (dated as of April 24, 1997) *10.5 Memorandum of Understanding between Harry K. McCreery and Software AG Americas, Inc. (dated as of December 16, 1996) *10.6 Memorandum of Understanding between Derek M. Brigden and Software AG Americas, Inc. (dated as of December 13, 1996) *10.7 Memorandum of Understanding between James H. Daly and Software AG Americas, Inc. (dated as of December 18, 1996) *10.8 Memorandum of Understanding between Thomas E. Gorley and Software AG Americas, Inc. (dated as of August 22, 1996) **10.9 Software AG Systems, Inc. 1997 Stock Option Plan, as amended *10.10 Management and Consulting Agreement between TC Management LLC and Software AG Americas, Inc. (dated as of April 1, 1997) *10.11 Deferred Compensation Agreement between Daniel F. Gillis and Software AG Americas, Inc. (dated as of July 1, 1995), as amended *10.12 Deferred Compensation Agreement between James H. Daly and Software AG Americas, Inc. (dated as of January 1, 1993), as amended *10.13 Deferred Compensation Agreement between Harry K. McCreery and Software AG Americas, Inc. (dated as of January 1, 1991), as amended *10.14 Administrative Services Agreement between Software AG and Software AG Americas, Inc. (dated as of March 31, 1997), as amended *10.15 Registration Rights Agreement between Software AG Systems, Inc. and Thayer Equity Investors III, L.P. (dated as of September 26, 1997) *10.16 Subscription Agreement between Timothy L. Hill and Software AG Systems, Inc. (dated as of August 22, 1997), as amended *10.17 Shareholders Agreement among Software AG Systems, Inc., Thayer Equity Investors III, L.P. and certain shareholders of Software AG Systems, Inc. (dated as of April 1, 1997) *10.18 Promissory Note made by Daniel F. Gillis (effective date March 24, 1997) *10.19 Promissory Note made by Harry K. McCreery (effective date March 24, 1997) *10.20 Promissory Note made by James H. Daly (effective date March 24, 1997) *10.21 Promissory Note made by Harry K. McCreery (effective date August 9, 1996) *10.22 Promissory Note made by James H. Daly (effective date August 9, 1996) ***11 Computations of Earnings per Share ***21 Subsidiaries of the Registrant ****23.1 Consent of Arnold & Porter (included in its opinion filed as Exhibit 5) ****23.2 Consent of KPMG Peat Marwick LLP ***24 Powers of Attorney
- -------- * Previously filed as an exhibit to the Company's Registration Statement on Form S-1 (File No. 333-36567) and incorporated herein by reference. ** Previously filed as an exhibit to the Company's Registration Statement on Form S-8 (File No. 333-44687) and incorporated herein by reference. *** Previously filed. **** Filed herewith. EX-5 2 EXHIBIT 5 EXHIBIT 5 May 19, 1998 Board of Directors. Software AG Systems, Inc. 11190 Sunrise Valley Drive Reston, VA 20191 Re: Software AG Systems, Inc. Registration Statement on Form S-1 File No. 333-50645 ------------------ Ladies and Gentlemen: We have acted as special counsel to Software AG Systems, Inc., a Delaware corporation (the "Company"), in connection with the Company's filing with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "1933 Act"), of the referenced registration statement on Form S-1 (the "Registration Statement") relating to the proposed offer and sale of (i) 5,074,150 shares (5,893,181 shares if the Underwriters' over-allotment option is fully exercised) (the "Primary Shares") of the Company's common stock, par value $.01 per share (the "Common Stock"), and (ii) 386,062 shares of Common Stock (the "Option Shares") that are being offered for sale pursuant to the exercise by certain stockholders of the Company of outstanding stock options granted under the Company's 1997 Stock Option Plan (the "Plan"). This opinion is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S) 229.601(b)(5), in connection with the Registration Statement. For purposes of this opinion, we have examined such corporate records of the Company, including executed copies of the Registration Statement and Amendment No. 1 thereto, the Company's First Amended and Restated Certificate of Incorporation, the Company's Second Amended and Restated Certificate of Incorporation, the Company's Third Amended and Restated Bylaws, resolutions of the Company's Board of Directors, the Compensation Committee thereof and the stockholders of the Company (including resolutions relating to the original issuance and sale of the Primary Shares and resolutions relating to the adoption of the Plan and the granting of stock options under the Plan covering the Option Shares) and the proposed form of underwriting agreement by and among the Company, the Selling Stockholders, BancAmerica Robertson Stephens, Donaldson, Lufkin & Jenrette Securities Corporation, Smith Barney Inc. and EVEREN Securities, Inc., filed as Exhibit 1 to the Registration Statement (the "Underwriting Agreement"), and such other documents as we deem necessary for rendering the opinion hereafter expressed. Software AG Systems, Inc. May 19, 1998 Page 2 In our examination of the aforesaid documents, we assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). We also have assumed the accuracy, completeness and authenticity of statements of fact on which we are relying and have made no independent investigations thereof. This opinion is given, and all statements herein are made, in the context of the foregoing. This opinion is based as to matters of law solely on the General Corporation Law of the State of Delaware. We express no opinion herein as to any other laws, statutes, regulations or ordinances. Based upon, subject to and limited by the foregoing, we are of the opinion that: (a) the Primary Shares are validly issued, fully paid and nonassessable under the General Corporation Law of the State of Delaware; and (b) the Option Shares have been duly authorized by the Company, and (i) following the sale of the Option Shares pursuant to the terms of the Underwriting Agreement and (ii) upon issuance pursuant to the terms of the Plan, such Option Shares will be validly issued, fully paid and nonassessable under the General Corporation Law of the State of Delaware. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement and to the reference to this firm under the caption "Legal Matters" in the prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the 1933 Act. Sincerely yours, /s/ Arnold & Porter Arnold & Porter EX-23.2 3 EXHIBIT 23.2 EXHIBIT 23.2 ACCOUNTANTS' CONSENT We consent to the use of our reports included herein and to the reference to our firm under the headings "Selected Consolidated Financial Data" and "Experts" in the prospectus. /s/ KPMG PEAT MARWICK LLP Washington, D.C. May 19, 1998 -----END PRIVACY-ENHANCED MESSAGE-----