0000950137-01-503922.txt : 20011010 0000950137-01-503922.hdr.sgml : 20011010 ACCESSION NUMBER: 0000950137-01-503922 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20011009 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SPSS INC CENTRAL INDEX KEY: 0000869570 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 362815480 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-71236 FILM NUMBER: 1754789 BUSINESS ADDRESS: STREET 1: 233 S WACKER DR CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3123292400 MAIL ADDRESS: STREET 1: 233 SOUTH WACKER DRIVE CITY: CHICAGO STATE: IL ZIP: 60606 S-3 1 c65218s-3.txt REGISTRATION STATEMENT 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 9, 2001 REGISTRATION NO. 333- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- SPSS INC. (Exact name of Registrant as specified in its charter) DELAWARE (State or other jurisdiction of incorporation or organization) 36-2815480 (I.R.S. Employer Identification No.) 233 SOUTH WACKER DRIVE CHICAGO, ILLINOIS 60606 (312) 651-3000 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) --------------------- EDWARD HAMBURG EXECUTIVE VICE PRESIDENT, CORPORATE OPERATIONS, CHIEF FINANCIAL OFFICER AND SECRETARY SPSS Inc. 233 South Wacker Drive Chicago, Illinois 60606 (312) 651-3000 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- COPIES TO: LAWRENCE R. SAMUELS, ESQ DAVID S. GUIN, ESQ. ROSS & HARDIES 150 NORTH MICHIGAN AVENUE CHICAGO, ILLINOIS 60601 (312) 558-1000 --------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement. 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. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] --------------------- CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------------------------------- PROPOSED PROPOSED TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM AGGREGATE MAXIMUM AGGREGATE AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE ------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.01 par value per share.................. 300,300 $17.55 $5,270,265 $1,318 ------------------------------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------------------------------
(1) This Registration Statement relates to common stock, par value $0.01 per share, of SPSS Inc. issued to Siebel Systems, Inc. (2) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) of the Securities Act of 1933 based upon the average of the high and low sale prices of the common stock on October 3, 2001. ------------------------ SPSS HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL SPSS 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 SEC, ACTING PURSUANT TO SECTION 8(a) OF THE SECURITIES ACT OF 1933, MAY DETERMINE. -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- 2 THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE COMMON STOCK TO WHICH THIS PROSPECTUS RELATES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY PROSPECTUS IS NOT AN OFFER TO SELL THE COMMON STOCK AND IT IS NOT SOLICITING AN OFFER TO BUY THE COMMON STOCK IN ANY STATE WHERE THE OFFER OR SALE OF THE COMMON STOCK IS NOT PERMITTED PRIOR TO THE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF THAT STATE. SUBJECT TO COMPLETION -- DATED OCTOBER 9, 2001 PROSPECTUS 300,300 SHARES SPSS INC. COMMON STOCK -------------------------------------------------------------------------------- This prospectus relates to the offer and sale of up to 300,300 shares of SPSS common stock from time to time by the selling stockholder, Siebel Systems, Inc. The selling stockholder acquired all 300,300 shares of common stock being offered by means of this prospectus in a private transaction exempt from the registration requirements of the Securities Act of 1933 on September 28, 2001 under a stock purchase agreement by and between the selling stockholder and SPSS. The shares of our common stock issued to the selling stockholder are being registered to permit the selling stockholder to sell the shares from time to time in the public market. The selling stockholder may sell the shares of common stock at prevailing market prices or at privately negotiated prices either directly or through agents or broker dealers, or through any other means described in the section "PLAN OF DISTRIBUTION" beginning on Page 10. The selling stockholder will receive all of the proceeds from the sale of the shares of common stock offered by means of this prospectus. As agreed in advance of SPSS's sale of the common stock to Siebel, we are paying all of the expenses of registration incurred in connection with this offering. Our common stock is quoted on the Nasdaq National Market under the symbol "SPSS". On October 3, 2001, the last reported sale price of our common stock on the Nasdaq National Market was $17.64 per share. Our address is 233 South Wacker Drive, Chicago, Illinois 60606 and our telephone number is (312) 651-3000. The shares offered by means of this prospectus involve a high degree of risk. See "RISK FACTORS" beginning on Page 1. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE COMMON STOCK TO WHICH THIS PROSPECTUS RELATES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE DATE OF THIS PROSPECTUS IS OCTOBER , 2001 3 TABLE OF CONTENTS
PAGE ---- FORWARD-LOOKING STATEMENTS.................................. 1 RISK FACTORS................................................ 2 USE OF PROCEEDS............................................. 7 SELLING STOCKHOLDER......................................... 7 PLAN OF DISTRIBUTION........................................ 8 LEGAL MATTERS............................................... 9 EXPERTS..................................................... 9 WHERE YOU CAN FIND MORE INFORMATION......................... 9 INFORMATION INCORPORATED BY REFERENCE....................... 9
4 FORWARD-LOOKING STATEMENTS This prospectus contains forward-looking statements within the meaning of section 27A of the Securities Act of 1933 and section 21E of the Securities Exchange Act of 1934. We may also make written forward-looking statements in our periodic reports to the SEC, in our press releases and other written materials and in oral statements made by our officers, directors or employees to third parties. Statements that are not historical facts, including statements about our beliefs and expectations, are forward-looking statements. These statements are based on the beliefs and assumptions of our management and on information currently available to us. Forward-looking statements include statements preceded by, followed by or that include the words "believes", "expects", "anticipates", "intends", "plans", "estimates", "designed", "may", "could", "predicts" or similar expressions. Because we are unable to control or predict many factors that will determine our future performance including financial results, forward-looking statements are not guarantees of future performance. They involve risks, uncertainties and assumptions. Our future results may differ materially from those expressed in the forward-looking statements contained in this prospectus and in the information incorporated by reference in this prospectus. See "WHERE YOU CAN FIND MORE INFORMATION." We caution you that a number of important factors could cause actual results to differ materially from those contained in any forward-looking statement. Specific factors that might cause these differences are discussed throughout this prospectus, including the section entitled "RISK FACTORS." SPSS's management believes these forward-looking statements are reasonable. However, because these statements are based on current expectations, you should not place undue reliance on these forward-looking statements. Forward-looking statements speak only as of the date they are made, and we undertake no obligation to update publicly any of them in light of new information or future events. 1 5 RISK FACTORS You should carefully consider the risks described below before making an investment decision. The risks and uncertainties described below are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently believe are immaterial may also impair our business operations. If any of the following risks actually occur, our business, financial condition or results of operations could be materially adversely affected, the trading price of our common stock could decline, and you could lose all or part of your investment. OUR FINANCIAL RESULTS AND STOCK PRICE MAY BE AFFECTED BY QUARTERLY FLUCTUATIONS SPSS's quarterly revenue and operating results have varied in the past and may continue to do so in the future. Future revenues and operating results will depend upon, among other factors: - the number and timing of product updates and new product introductions; - delays in product development and introduction; - purchasing schedules of its customers; - changes in foreign currency exchange rates; - product and market development expenditures; - the timing of product shipments; - changes in product mix; - timing, costs and effects of acquisitions; and - general economic conditions. Because SPSS's expense levels are to a large extent based on its forecasts of future revenues, operating results may be adversely affected if our future revenues fall below expectations. Accordingly, SPSS believes that quarter-to-quarter comparisons of its results of operations may not be meaningful and should not be relied upon as an indication of future performance. SPSS has historically operated with very little backlog because its products are generally shipped as orders are received. As a result, revenues in any quarter are dependent on orders shipped and licenses renewed in that quarter. SPSS has experienced a seasonal pattern in its operating results with the fourth quarter typically having the highest operating income. For example, excluding acquisition and other non-recurring charges and the deferred revenue adjustment in 2000, the percentage of SPSS operating income realized in the fourth quarter was 35% in 1998, 38% in 1999 and 29% in 2000. We can provide no assurance that our operating income realized in any given fourth quarter will remain at historically high percentage levels, which could adversely affect revenues for an entire fiscal year. In addition, the timing and amount of SPSS's revenues may be affected by a number of factors that make estimation of operating results before the end of a quarter uncertain. A significant portion of SPSS's operating expenses are relatively fixed, and planned expenditures are based primarily on revenue forecasts. More specifically, in the fourth quarter, the variable profit margins on modest increases in sales volume at the end of the quarter are significant. Should SPSS fail to achieve these fourth quarter revenue increases, net income for the fourth quarter and the full year could be materially affected. Generally, if revenues do not meet SPSS's expectations in any given quarter, operating results will be adversely affected. SPSS was profitable in the ten quarters from December 31, 1994 through June 30, 1997, but had a net loss of $4,196,000 in the third quarter of 1997 due primarily to one-time acquisition charges of $2,911,000 and a charge from the revaluation of specified assets of $5,555,000. In 1998, SPSS was profitable in the first three quarters, but had a net loss of $1,355,000 in the fourth quarter of 1998 primarily due to a one-time merger-related charge and write-off of acquired in-process technology of $5,500,000 and a charge for revaluation of specified assets of $445,000. In 1999, SPSS was profitable in all four quarters. In 2000, SPSS had a fourth quarter net loss of $4,090,000 primarily due to the negative effects of deferring 2 6 revenues in accordance with AICPA Technical Practice Aids regarding software revenue recognition. This application resulted in a $16,975,000 reduction in net revenues. There can be no assurance that profitability on a quarterly or annual basis can be achieved or sustained in the future. SPSS MAY BE UNSUCCESSFUL IN INTEGRATING RECENT ACQUISITIONS In recent years, SPSS has made a significant number of acquisitions, including the acquisition of businesses based outside of the United States. SPSS faces challenges and business integration issues with its November 1999 acquisition of Vento Software, Inc., a Florida corporation and the March 2001 merger of one of SPSS's wholly-owned subsidiaries with and into ShowCase Corporation, a Minnesota corporation. There can be no assurance that Vento and ShowCase will be able to retain these employees or hire suitable replacements in the event they should leave the employ of SPSS. If SPSS loses key personnel from Vento and ShowCase or is unable to integrate Vento's or ShowCase's business or technology into its own effectively, SPSS may experience a material adverse impact on its financial condition. There can be no assurance that the recent acquisitions of Vento or ShowCase or future acquisitions will be successfully integrated into SPSS. SPSS MAY NOT RESPOND ADEQUATELY TO RAPID TECHNOLOGICAL CHANGES The computer software industry is characterized by rapid technological advances, changes in customer requirements, as well as frequent enhancements to and introductions of technologies. SPSS's future success will depend upon its ability to enhance its existing software and introduce new software products that keep pace with technological developments, respond to evolving customer requirements and achieve market acceptance. In particular, SPSS believes it must continue to respond quickly to users' needs for greater functionality, improved usability and support for new hardware and operating systems. Any failure by SPSS to respond adequately to technological developments and customer requirements, or any significant delays in software development or introduction, could result in loss of revenues. In the past, SPSS has, on occasion, experienced delays in the introduction of new software and enhancements to existing technology, primarily due to difficulties with particular operating environments and problems with software provided by third parties. The extent of these delays has varied depending upon the size and scope of the project and the nature of the problems encountered. These delays have most often resulted from "bugs" encountered in working with new versions of operating systems and other third party software, and bugs or unexpected difficulties in existing third party software which complicate integration with SPSS's software. From time to time, SPSS has discovered bugs in its software that are resolved through maintenance releases or through periodic updates depending upon the seriousness of the defect. There can be no assurance that SPSS will be successful in developing and marketing new software or enhancements to existing technology on a timely basis or that SPSS will not experience significant delays or defects in its software in the future, which could have a material adverse effect on SPSS. In addition, there can be no assurance that new software or enhancements to existing technology developed by SPSS will achieve market acceptance or that developments by others will not render SPSS's technologies obsolete or noncompetitive. SPSS MAY FACE BUSINESS DECLINES DUE TO OUR INTERNATIONAL OPERATIONS Revenues from operations outside of North America accounted for approximately 47% of SPSS's revenues in 1998, 50% of SPSS's revenues in 1999 and 48% of SPSS's revenues in 2000. SPSS expects that revenues from international operations will continue to represent a large percentage of its net revenues and that this percentage may increase, particularly as SPSS further "localizes" products by translating them into additional languages and expands its operations through acquisitions of companies outside the United States. A number of risk factors may affect our international revenues, including: - greater difficulties in accounts receivable collection; - longer payment cycles; 3 7 - exposure to currency fluctuations; - financial, tax and accounting impact of the European Union's adoption of the Euro as legal currency; - political and economic instability; and - the burdens of complying with a wide variety of foreign laws and regulatory requirements. SPSS also believes that it is exposed to greater levels of software piracy in international markets because of the weaker protection afforded to intellectual property in some foreign jurisdictions. As SPSS expands its international operations, the risks described above could increase and, in any event, could have a material adverse effect on SPSS. SPSS'S STOCK PRICE MAY EXPERIENCE VOLATILITY There has been significant volatility in the market prices of securities of technology companies, including SPSS, and, in some instances, this volatility has been unrelated to the operating performance of those companies. Market fluctuations may adversely affect the price of our common stock. SPSS also believes that, in addition to factors such as interest rates and economic conditions which affect stock prices generally, some, but not all, of the factors which could result in fluctuations in our stock price include: - announcements of new products by SPSS or its competitors; - quarterly variations in financial results; - recommendations and reports of analysts; - acquisitions; and - other factors beyond SPSS's control. SPSS RELIES ON THIRD PARTIES FOR CERTAIN SOFTWARE SPSS licenses software from third parties. Some of this licensed software is embedded in SPSS's products, and some is offered as add-on products. If these licenses are discontinued, or become invalid or unenforceable, there can be no assurance that SPSS will be able to develop substitutes for this software independently or to obtain alternative sources in a timely manner. Any delays in obtaining or developing substitutes for licensed software could have a material adverse effect on SPSS. SPSS RELIES ON THIRD PARTIES FOR SOFTWARE DISTRIBUTION In January 1997, SPSS entered into a Banta Global Turnkey Software Distribution Agreement under which Banta Global Turnkey manufactures, packages and distributes SPSS's software products to SPSS's domestic and international customers and various international subsidiaries. The Banta agreement had an initial three-year term and automatically renews thereafter for successive periods of one year. The Banta agreement was renewed in January 2001. Either party may terminate the Banta agreement for cause by written notice if the other materially breaches its obligations. If Banta fails to perform adequately any of its obligations under the Banta agreement, SPSS's operating results could be materially adversely affected. CHANGES IN PUBLIC EXPENDITURES MAY ADVERSELY AFFECT SPSS A significant portion of SPSS's revenues comes from licenses of its software directly to foreign and domestic government entities. In addition, significant amounts of SPSS's revenues come from licenses to academic institutions, healthcare organizations and private businesses that contract with or are funded by government entities. Government appropriations processes are often slow and unpredictable and may be affected by factors outside SPSS's control. In addition, proposals are currently being made in various countries to reduce government spending. Reductions in government expenditures and termination or renegotiation of government-funded programs or contracts could have a material adverse effect on SPSS. 4 8 In addition, declines in overall levels of economic activity could also have a material adverse impact on SPSS. SPSS MAY BE UNABLE TO CONTINUE TO COMPETE WITH COMPANIES IN ITS INDUSTRIES THAT HAVE FINANCIAL OR OTHER ADVANTAGES SPSS's historical market for statistical software is both highly competitive and fragmented. SPSS is among the largest companies in the statistical software market, and, based upon sales and comparative assessments in trade publications, SPSS believes that it competes effectively against its competitors, particularly on desktop computing platforms. SPSS considers its primary worldwide competitor to be the larger and better-financed SAS Institute, although SPSS believes that SAS's revenues are derived principally from products for purposes other than statistical analysis and operate on large systems platforms. StatSoft Inc. and Minitab, Inc. are also competitors, although their annual revenues from these statistical products are believed to be considerably less than the revenues of SPSS. In addition to competition from other statistical software companies, SPSS also faces competition from providers of software for specific statistical applications. In the data mining, customer relationship management and business performance measurement markets, SPSS faces competition from many larger and more well-funded companies, including SAS, IBM, Informix, NCR, Oracle, and others, as well as recent entrants, such as Attune, Broadbase, E.piphany and NetPerceptions, many of whom specialize in customer relationship management in e-commerce settings. With the exception of SAS, these competitors do not currently offer the range of analytical capability SPSS offers, and as a result are both competitors and potential partners for SPSS technology. In all markets, SPSS competes primarily on the basis of the usability, functionality, performance, reliability and connectivity of its software. The significance of each of these factors varies depending upon the anticipated use of the software and the analytical training and expertise of the customer. To a lesser extent, SPSS competes on the basis of price. SPSS maintains pricing and licensing policies to meet market demand. SPSS believes it is able to compete successfully because of the highly usable interfaces, comprehensive analytical capabilities, efficient performance characteristics, local language versions, consistent quality, and connectivity features of its software, as well as its worldwide distribution capabilities and widely recognized name. In the future, SPSS may face competition from new entrants into its markets. SPSS could also experience competition from companies in other sectors of the broader market for business intelligence software, such as providers of OLAP (On-Line Analytical Processing) and analytical application software, as well as from companies in other sectors of the broader market for customer relationship management software, including providers of sales force automation and campaign management software, which could add advanced analytical functionality to their existing offerings. Some of these potential competitors have significantly more capital resources, marketing experience and research and development capabilities than SPSS. Competitive pressures from the introduction of new solutions and products by these companies or other companies could have a material adverse effect on SPSS. There can be no assurance that SPSS will be able to compete successfully in the future. SPSS DEPENDS ON KEY EXECUTIVES. A LOSS OF THESE EXECUTIVES AND OTHER PERSONNEL COULD NEGATIVELY IMPACT OUR OPERATIONS SPSS is dependent on the efforts of various executives and key employees, including its President and Chief Executive Officer, Jack Noonan. SPSS's continued success will depend in part on its ability to attract and retain highly qualified technical, managerial, sales, marketing and other personnel. Competition for such personnel is intense. SPSS's inability to continue to attract or retain such highly qualified personnel could have a material adverse effect on SPSS's financial position and results of operation. No life insurance policies are maintained on SPSS's key personnel. 5 9 SPSS MAY NOT RECEIVE THE FULL BENEFITS OF ITS INTELLECTUAL PROPERTY PROTECTIONS The analytical algorithms incorporated in SPSS's software are not proprietary. SPSS believes that the proprietary technology constituting a portion of its software determines the speed and quality of displaying the results of computations, the ability of its software to work in conjunction with third party software, and the ease of use of its software. SPSS's success will depend, in part, on its ability to protect the proprietary aspects of its software. SPSS's attempts to protect its proprietary software with trade secret laws and internal nondisclosure safeguards, as well as copyright and trademark laws and contractual restrictions on copying, disclosure and transferability that are incorporated into its software license agreements. SPSS licenses its software only in the form of executable code, with contractual restrictions on copying, disclosures and transferability. SPSS licenses its software for use on mainframes, minicomputers, and distributed computer networks. SPSS licenses its products for personal computers to end-users by use of a "shrink-wrap" license that is not signed by licensees, as is customary in the packaged software industry. It is uncertain whether these license agreements are legally enforceable. The source code for all of SPSS's software is protected as a trade secret and as unpublished copyrighted work. In addition, SPSS has entered into confidentiality and nondisclosure agreements with its key employees. Despite these restrictions, it may be possible for competitors or users to copy aspects of SPSS's software or to obtain information which SPSS regards as a trade secret. SPSS has no patents, and judicial enforcement of copyright laws may be uncertain, particularly outside of North America. Preventing unauthorized use of computer software is difficult, and software piracy is expected to be a persistent problem for the packaged software industry. These problems may be particularly acute in international markets. In addition, the laws of various countries in which SPSS's software is or may be licensed do not protect SPSS's software and intellectual property rights to the same extent as the laws of the United States. Despite the precautions taken by SPSS, it may be possible for unauthorized third parties to reverse engineer or copy SPSS's products or obtain and use information that SPSS regards as proprietary. There can be no assurance that the steps taken by SPSS to protect its proprietary rights will be adequate to prevent misappropriation of its technology. Although SPSS's software has never been the subject of an infringement claim, there can be no assurance that third parties will not assert infringement claims against SPSS in the future or that any infringement assertion will not result in costly litigation or require SPSS to obtain a license to use the intellectual property of third parties. There can be no assurance that these licenses will be available on reasonable terms, or at all. There can also be no assurance that SPSS's competitors will not independently develop technologies that are substantially equivalent or superior to SPSS's technologies. CERTAIN STOCKHOLDERS AND OFFICERS AND DIRECTORS MAY CONTROL CORPORATE ACTIONS DUE TO THEIR OWNERSHIP OF SPSS STOCK As of August 31, 2001, SPSS's executive officers and directors owned beneficially approximately 23% of the outstanding shares of SPSS common stock. The Norman H. Nie Revocable Trust Dated March 15, 1991 (a trust controlled by Norman H. Nie, the chairman of our board of directors) and affiliates of the Norman H. Nie Trust are entitled to nominate a director for inclusion in the management slate for election to the Board of Directors if the Norman H. Nie Trust owns at least 12.5% of the outstanding shares of common stock. As of August 31, 2001, the Norman H. Nie Trust and affiliates of the Norman H. Nie Trust beneficially owned approximately 7.2% of the outstanding shares of common stock. Because of the combined voting power of the officers and directors, these individuals acting as a group may be able to influence SPSS's affairs and business, including any determination with respect to a change in control of SPSS, future issuances of SPSS common stock or other securities, declaration of dividends on SPSS common stock and the election of directors. This influence could have the effect of delaying, deferring or preventing a change of control of SPSS which could deprive SPSS's stockholders of the opportunity to sell their shares of common stock at prices higher than prevailing market prices. 6 10 ANTI-TAKEOVER PROTECTIONS MAY MAKE IT DIFFICULT FOR A THIRD PARTY TO ACQUIRE SPSS SPSS's Certificate of Incorporation and bylaws contain a number of provisions, including provisions requiring an 80% super-majority stockholder approval of specified actions and provisions for a classified Board of Directors, which would make the acquisition of SPSS, by means of an unsolicited tender offer, a proxy contest or otherwise, more difficult. SPSS's bylaws provide for a staggered board of directors so that only one-third of the total number of directors are replaced or re-elected each year. Therefore, potential acquirers of SPSS may face delays in replacing the existing directors. SPSS's senior executive officers may be entitled to substantial payments in the event of their termination without cause or constructive termination following a change of control of SPSS. These payments could have the effect of discouraging a potential acquirer from acquiring control of SPSS. SALES OF SPSS STOCK AVAILABLE FOR FUTURE USE COULD DEPRESS SPSS'S STOCK PRICE In addition to the shares of common stock which are outstanding, as of August 31, 2001, there were vested options outstanding held by management to purchase approximately 1,118,464 additional shares of common stock, with an average exercise price of $17.73 per share, and unvested options to purchase approximately 738,420 additional shares of common stock. SPSS has also established a stock purchase plan available to employees of SPSS, which permits employees to acquire shares of common stock at the end of each quarter at 85% of the market price of the common stock as of the day after the end of the quarter. No prediction can be made as to the effect, if any, that future sales, or the availability of shares of SPSS common stock for future sales, will have on the market price prevailing from time to time. Sales of substantial amounts of common stock by SPSS or by stockholders who hold "restricted securities," or the perception that these sales may occur, could adversely affect prevailing market prices for the common stock. USE OF PROCEEDS All of the shares of common stock being offered by means of this prospectus are being sold by the selling stockholder, who will receive all proceeds from any sales. We will not receive any of the proceeds from the sale of the shares of common stock offered by the selling stockholder. In addition, other than the completion and filing of this registration statement, we will not participate in the offering or sale of the shares of common stock by the selling stockholder. SELLING STOCKHOLDER The selling stockholder, Siebel Systems, Inc., acquired our shares of common stock in a private transaction on September 28, 2001. The purchase and sale of the shares of common stock occurred under the terms of a stock purchase agreement in which SPSS and Siebel agreed upon a negotiated price and SPSS's obligation to register the resale of the common stock. Under the terms of the stock purchase agreement, a representative of Siebel Systems, Inc. is entitled to participate in meetings of our Industry Advisory Board, when such Industry Advisory Board is established. Neither SPSS nor Siebel believes that this relationship will have a material financial impact on their overall businesses. The following table identifies (a) the number of shares of our common stock which the selling stockholder owned before the offering and the percentage of our total outstanding common stock which that number represents, (b) the maximum number of shares that the selling stockholder may offer by means of this prospectus, and (c) the number of shares of our common stock which the selling stockholder will own after the offering and the percentage of our total outstanding common stock which that number represents. The selling stockholder may from time to time offer the shares of common stock offered by means of this prospectus. We do not know when or in what amounts the selling stockholder 7 11 may offer shares for resale and we cannot assure you that the selling stockholder will sell any or all of the shares offered by means of this prospectus.
SHARES BENEFICIALLY SHARES BENEFICIALLY OWNED BEFORE THE OWNED AFTER THE OFFERING(1) OFFERING(2) -------------------- NUMBER OF SHARES ------------------- SELLING STOCKHOLDER NUMBER PERCENTAGE OFFERED HEREBY NUMBER PERCENTAGE ------------------- ------- ---------- ---------------- ------ ---------- Siebel Systems, Inc................... 300,300 2.2% 300,300 0 *
--------------- * Less than 1% of the issued and outstanding shares of SPSS's common stock. (1) SPSS has relied on information provided by the selling stockholder to determine the number of shares of our common stock, if any, which the selling stockholder owned before receiving the shares of our common stock issued to them in connection with the stock purchase agreement. (2) Assumes the sale of all shares that may be sold in the offering. PLAN OF DISTRIBUTION The shares offered by means of this prospectus may be sold from time to time by the selling stockholder. See "SELLING STOCKHOLDER" and "USE OF PROCEEDS." We have agreed to register the resale of 300,300 shares of our common stock held by the selling stockholder. The selling stockholder may offer the shares from time to time in the open market, on the Nasdaq National Market, in privately negotiated transactions, or in a combination of these methods, at market prices that prevail at the time of sale or at privately negotiated prices. The selling stockholder may sell these shares through one or more brokers or dealers or directly to purchasers. These broker-dealers may receive compensation in the form of commissions, discounts or concessions from the selling stockholder and/or purchasers of the shares for whom those broker-dealers may act as agent, or to whom they may sell as principal, or both. Compensation as to a particular broker-dealer may exceed customary commissions. The selling stockholder and any broker-dealers who act in connection with the sale of the shares under this prospectus may be deemed to be "underwriters" within the meaning of the Securities Act. Any commissions they receive and proceeds of any sale of shares may be deemed to be underwriting discounts and commissions under the Securities Act. Under Exchange Act rules and regulations, no distribution participant or its affiliated purchasers (as defined in Regulation M adopted under the Exchange Act) may simultaneously engage in market making activities with respect to the shares for a restricted period beginning on the day proxy solicitation or offering materials are first disseminated to security holders and ending upon the completion of the distribution, except under limited circumstances. The selling stockholder, their affiliated purchasers and any other person participating in the distribution may be required to comply with specified provisions of the Exchange Act and related rules and regulations. These provisions prohibit, except under limited circumstances, the purchase and sale of any of the shares by the selling stockholder, their affiliated purchasers and any other person participating in the distribution during the restricted period described above. These restrictions may affect the marketability of the shares and the ability of any person or entity to engage in market making activities with respect to the shares. From time to time, the selling stockholder may pledge, hypothecate or grant a security interest in some or all of the shares of our common stock they own. If a foreclosure or event of default occurs in connection with those pledges, the shares may be transferred to the persons to whom the shares were pledged. If a transfer occurs in this situation, the transferees will be deemed to have the rights of the selling stockholder under this plan of distribution. At the same time, the selling stockholder will beneficially own fewer shares. The plan of distribution for the selling stockholder's shares will otherwise remain unchanged. We have agreed to pay all of the expenses incident to the registration, offering and sale of the shares to the public other than commissions or discounts of underwriters, broker-dealers or agents. We have agreed to indemnify the selling stockholder against specified liabilities under the Securities Act. 8 12 This offering will terminate on the date on which all shares offered by means of this prospectus have been sold by the selling stockholder. LEGAL MATTERS The legality of the shares of our common stock being offered by means of this prospectus has been passed on for SPSS by Ross & Hardies, Chicago, Illinois. EXPERTS The financial statements and schedule of SPSS as of December 31, 2000 and 1999 and for each of the years in the three-year period ended December 31, 2000, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We have filed a registration statement on Form S-3 with the SEC under the Securities Act of 1933 to allow the selling stockholder to resell the common stock offered by means of this prospectus. This prospectus, which is a part of the registration statement, does not contain all of the information identified in the registration statement. For further information about us and the common stock offered by means of this prospectus, we refer you to the registration statement and the exhibits filed as a part of the registration statement. Statements contained in this prospectus as to the contents of any contract or other document filed as an exhibit to the registration statement are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, we refer you to the copy of the contract or document that has been filed. SPSS Inc. is subject to the information and periodic reporting requirements of the Securities Exchange Act of 1934. In accordance with those requirements, we file annual, quarterly and special reports, proxy statements and other information with the SEC. You can read and copy any document we file at the SEC's public reference rooms at the following locations: Judiciary Plaza 450 Fifth Street, N.W. Room 1024 Washington, D.C., 20549 500 West Madison Street Suite 1400 Chicago, Illinois 60661-2511 You can request copies of these documents upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms and the procedure for obtaining copies. The documents which SPSS files with the SEC, including the registration statement, are also available to you on the SEC's web site. You can log onto the SEC's web site at http://www.sec.gov. INFORMATION INCORPORATED BY REFERENCE The SEC allows us to "incorporate by reference" the information that we file with it, which means that we can disclose important information to you by referring to those documents. As a result, you may need to review other documents filed by SPSS with the SEC to obtain more information. Information is incorporated into this prospectus in two ways. First, if information is contained in a document which SPSS filed with the SEC before the date of this prospectus, the document is specifically identified below. 9 13 Second, all of the information provided in a periodic or other report or proxy statement filed by SPSS with the SEC after the date of this prospectus is incorporated by reference. The information contained in the documents we incorporate by reference is considered a part of this prospectus. Additionally, because information concerning SPSS, whether contained in this prospectus or in a document incorporated by reference, will be amended or superseded by more current information contained in later filed documents, the information that we file with the SEC after the date of this prospectus will update and supersede older information contained in, or incorporated by reference into, this prospectus. We incorporate by reference into this prospectus all the documents listed below: - The annual report of SPSS Inc. on Form 10-K filed with the SEC for the fiscal year ended December 31, 2000; - The quarterly report of SPSS Inc. on Form 10-Q filed with the SEC for the fiscal quarter ended June 30, 2001; - The quarterly report of SPSS Inc. on Form 10-Q filed with the SEC for the fiscal quarter ended March 31, 2001; - The proxy statement filed with the SEC on May 21, 2001, for SPSS's annual meeting of stockholders held on June 20, 2001, except for the compensation committee report contained therein; and - The description of the common stock of SPSS Inc. contained in its registration statement filed with the SEC on a Form 8-A dated August 4, 1993 pursuant to Section 12 of the Securities Exchange Act of 1934. In addition to the documents listed above, SPSS incorporates by reference into this prospectus all documents filed by SPSS with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus and until all of the common stock being offered by means of this prospectus have been sold by the selling stockholder or the registration statement which SPSS has filed with the SEC relating to the common stock ceases to be effective. We will deliver a free copy of any document incorporated by reference into this prospectus but not delivered with this prospectus to anyone who receives this prospectus. Exhibits filed with the documents which are incorporated by reference into this prospectus will be delivered only if the exhibits have been specifically incorporated by reference. Requests for these documents may be made in writing or orally and should be directed to: Chief Financial Officer, SPSS Inc., 233 South Wacker Drive, Chicago, Illinois 60606, (312) 651-3000. Neither SPSS nor the selling stockholder has authorized any dealer, salesman or any other person to give any information or to make any representations not contained in this prospectus. As a result, any information or representation not contained herein must not be relied upon as having been authorized by SPSS. Neither SPSS nor the selling stockholder is making an offer of the common stock in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of this document. All selling stockholders that effect transactions in the shares of common stock offered by means of this prospectus are required to deliver a copy of their prospectus to any purchaser of the shares of common stock at or before the time a certificate representing the shares of common stock is delivered to the purchaser. 10 14 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION We have agreed to bear the expenses of registering the shares for the selling stockholder under the federal and state securities laws. The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the sale of common stock being offered. All amounts are estimated except the SEC registration fee. SEC registration fee........................................ $ 1,318 Printing expenses........................................... $ 2,500 Legal fees and expenses..................................... $ 5,000 Accounting fees and expenses................................ $ 2,000 Miscellaneous expenses...................................... $ 1,182 ------- Total.................................................. $12,000 =======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS SPSS's Certificate of Incorporation provides for indemnification to the full extent permitted by the laws of the State of Delaware against and with respect to threatened, pending or completed actions, suits or proceedings arising from or alleged to arise from, a party's actions or omissions as a director, officer, employee or agent of SPSS or of any other corporation, partnership, joint venture, trust or other enterprise which has served in such capacity at the request of SPSS if the acts or omissions occurred or were or are alleged to have occurred, while said party was a director or officer of SPSS; provided, however, SPSS shall not indemnify any director or officer in an action against SPSS unless SPSS shall have consented to the action. Generally, under Delaware law, indemnification will only be available where an officer or director can establish that he/she acted in good faith and in a manner which was reasonably believed to be in or not opposed to the best interests of SPSS. Section 145 of the Delaware Law provides that a corporation may indemnify a director, officer, employee or agent made a party to an action by reason of the fact that the person was a director, officer, employee or agent of the corporation or was serving at the request of the corporation against expenses actually incurred by the person in connection with the action if the person acted in good faith and in a manner that the person reasonably believed to be in, or not opposed to, the best interest of the corporation with respect to any criminal action, and had no reasonable cause to believe his conduct was unlawful. Delaware Law does not permit a corporation to eliminate a director's duty of care, and the provisions of SPSS's Certificate of Incorporation have no effect on the availability of equitable remedies such as injunction or rescission, based upon a director's breach of the duty of care. SPSS maintains a director's and officer's liability insurance policy which indemnifies directors and officers for specified losses arising from a claim by reason of a wrongful act, as defined, under specified circumstances where SPSS does not provide indemnification. II-1 15 ITEM 16. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS (a) Exhibits numbered in accordance with Item 601 of Regulation S-K
INCORPORATION BY EXHIBIT REFERENCE NUMBER DESCRIPTION OF DOCUMENT (IF APPLICABLE) ------- ----------------------- ---------------- 2.1 Agreement and Plan of Merger among SPSS Inc., SPSS ACSUB, Inc., Clear Software, Inc. and the shareholders named therein, dated September 23, 1996. ......................... (1), Ex. 2.1 2.2 Agreement and Plan of Merger among SPSS Inc., SPSS Acquisition Inc. and Jandel Corporation, dated October 30, 1996. ...................................................... (2), Annex A 2.3 Asset Purchase Agreement by and between SPSS Inc. and DeltaPoint, Inc., dated as of May 1, 1997. ................. (16), Ex. 2.3 2.4 Stock Purchase Agreement among the Registrant, Edward Ross, Richard Kottler, Norman Grunbaum, Louis Davidson and certain U.K.-Connected Shareholders or warrant holders of Quantime Limited named therein, dated as of September 30, 1997, together with a list briefly identifying the contents of omitted schedules. ......................................... (3), Ex. 2.1 2.5 Stock Purchase Agreement among the Registrant, Edward Ross, Richard Kottler, Norman Grunbaum, Louis Davidson and certain Non-U.K. Shareholders or warrant holders of Quantime Limited named therein, dated as of September 30, 1997, together with a list briefly identifying the contents of omitted schedules. ................................................. (3), Ex. 2.2 2.6 Stock Purchase Agreement by and among SPSS Inc. and certain Shareholders of Quantime Limited listed on the signature pages thereto, dated November 21, 1997. .................... (4), Ex. 2.1 2.7 Stock Purchase Agreement by and among Jens Nielsen, Henrik Rosendahl, Ole Stangegaard, Lars Thinggaard, Edward O'Hara, Bjorn Haugland, 2M Invest and the Shareholders listed on Exhibit A thereto, dated November 21, 1997. ................ (4), Ex. 2.2 2.8 Stock Purchase Agreement by and among SPSS Inc. and the Shareholders of Integral Solutions Limited listed on the signature pages hereof, dated as of December 31, 1998. ..... (18), Ex. 2.1 2.9 Share Purchase Agreement by and among SPSS Inc., Surveycraft Pty Ltd. and Jens Meinecke and Microtab Systems Pty Ltd., dated as of November 1, 1998. .............................. (20), Ex. 2.9 2.10 Stock Acquisition Agreement by and among SPSS Inc., Vento Software, Inc. and David Blyer, John Gomez and John Pappajohn, dated as of November 29, 1999. .................. (21), Ex. 2.1 2.11 Asset Purchase Agreement by and between SPSS Inc. and DataStat, S.A., dated as of December 23, 1999. ............. (24), Ex. 2.11 2.12 Agreement and Plan of Merger dated as of November 6, 2000, among SPSS, SPSS Acquisition Sub Corp., and ShowCase. ...... (25), Ex. 2.1 3.1 Certificate of Incorporation of SPSS ....................... (5), Ex. 3.2 3.2 By-Laws of SPSS............................................. (5), Ex. 3.4 5.1 Opinion of Ross & Hardies 10.1 Employment Agreement with Jack Noonan....................... (8), Ex. 10.1 10.2 Agreement with Valletta..................................... (6), Ex. 10.2 10.3 Agreement between SPSS and Prentice Hall.................... (6), Ex. 10.5 10.5 HOOPS Agreement............................................. (6), Ex. 10.7 10.6 Stockholders Agreement...................................... (5), Ex. 10.8 10.7 Agreements with CSDC........................................ (5), Ex. 10.9
II-2 16
INCORPORATION BY EXHIBIT REFERENCE NUMBER DESCRIPTION OF DOCUMENT (IF APPLICABLE) ------- ----------------------- ---------------- 10.8 Amended 1991 Stock Option Plan.............................. (5), Ex. 10.10 10.9 SYSTAT Asset Purchase Agreement............................. (9), Ex. 10.9 10.10 1994 Bonus Compensation..................................... (10), Ex. 10.11 10.11 Lease for Chicago, Illinois Office.......................... (10), Ex. 10.12 10.12 Amendment to Lease for Chicago, Illinois Office............. (10), Ex. 10.13 10.13 1995 Equity Incentive Plan.................................. (11), Ex. 10.14 10.14 1995 Bonus Compensation..................................... (12), Ex. 10.15 10.15 Amended and Restated 1995 Equity Incentive Plan............. (13), Ex. 10.17 10.16 1996 Bonus Compensation..................................... (14), Ex. 10.18 10.17 Software Distribution Agreement between SPSS Inc. and Banta Global Turnkey. ............................................ (14), Ex. 10.19 10.18 Lease for Chicago, Illinois in Sears Tower.................. (15), Ex. 10.20 10.19 1997 Bonus Compensation..................................... (17), Ex. 10.21 10.20 Norman H. Nie Consulting L.L.C. Agreement with SPSS......... (17), Ex. 10.22 10.21 Second Amended and Restated 1995 Equity Incentive Plan...... (19), Ex.A 10.22 1998 Bonus Compensation..................................... (20), Ex. 10.23 10.23 Third Amended and Restated 1995 Equity Incentive Plan....... (22), Ex. 10.1 10.24 Loan Agreement dated June 1, 1999 between SPSS and American National Bank and Trust Company of Chicago. ................ (23), Ex. 10.1 10.25 First Amendment to Loan Agreement dated June 1, 1999 between SPSS and American National Bank and Trust Company of Chicago. ................................................... (23), Ex. 10.2 10.26 1999 Bonus Compensation..................................... (24), Ex. 10.27 10.27 2000 Equity Incentive Plan.................................. (26), Ex. 10.45 10.28 SPSS Qualified Employee Stock Purchase Plan................. (26), Ex. 10.46 10.29 SPSS Nonqualified Employee Stock Purchase Plan.............. (26), Ex. 10.47 10.30 2000 Bonus Compensation..................................... (27), Ex. 10.30 10.31 Stock Purchase Agreement by and between SPSS Inc. and Siebel Systems, Inc. 21.1 Subsidiaries of SPSS........................................ (27), Ex. 21.1 23.1 Consent of KPMG LLP. 23.2 Consent of Ross & Hardies (Included in Exhibit 5.1). 24.1 Power of Attorney (Included in the Signature Page to this Registration Statement).
--------------- (1) Previously filed with SPSS Inc.'s Report on Form 8-K, dated September 26, 1996, filed on October 11, 1996, as amended on Form 8-K/A-1, filed November 1, 1996. (File No. 000-22194) (2) Previously filed with Amendment No. 1 to Form S-4 Registration Statement of SPSS Inc. filed on November 7, 1996. (File No. 333-15427) (3) Previously filed with SPSS Inc.'s Report on Form 8-K, dated September 30, 1997, filed on October 15, 1997. (File No. 000-22194) (4) Previously filed with the Form S-3 Registration Statement of SPSS Inc. filed on November 26, 1997. (File No. 333-41207) (5) Previously filed with Amendment No. 2 to Form S-1 Registration Statement of SPSS Inc. filed on August 4, 1993. (File No. 33-64732) II-3 17 (6) Previously filed with Amendment No. 1 to Form S-1 Registration Statement of SPSS Inc. filed on July 23, 1993. (File No. 33-64732) (7) Previously filed with Form 10-Q Quarterly Report of SPSS Inc. for the Quarterly period ended September 30, 1993. (File No. 000-22194) (8) Previously filed with the Form S-1 Registration Statement of SPSS Inc. filed on June 22, 1993. (File No. 33-64732) (9) Previously filed with the Form S-1 Registration Statement of SPSS Inc. filed on December 5, 1994. (File No. 33-86858) (10) Previously cited with the Form 10-K Annual Report of SPSS Inc. for the year ended December 31, 1994. (File No. 000-22194) (11) Previously filed with SPSS Inc.'s 1995 Proxy Statement. (File No. 000-22194) (12) Previously filed with the Form 10-K Annual Report of SPSS Inc. for the year ended December 31, 1995. (File No. 000-22194) (13) Previously filed with SPSS Inc.'s 1996 Proxy Statement. (File No. 000-22194) (14) Previously filed with the Form 10-K Annual Report of SPSS Inc. for the year ended December 31, 1996. (File No. 000-22194) (15) Previously filed with the Form 10-Q Quarterly Report of SPSS Inc. for the quarterly period ended March 31, 1997. (File No. 000-22194) (16) Previously filed with the Form 10-Q Quarterly Report of SPSS Inc. for the quarterly period ended June 30, 1997. (File No. 000-22194) (17) Previously filed with the Form 10-K Annual Report of SPSS Inc. for the year ended December 31, 1997. (File No. 000-22194) (18) Previously filed with SPSS Inc.'s Report on Form 8-K, dated December 31, 1998, filed on January 15, 1999, as amended on Form 8-K/A filed March 12, 1999. (File No. 000-22194) (19) Previously filed with SPSS Inc.'s 1998 Proxy Statement. (File No. 000-22194) (20) Previously filed with the Form 10-K Annual Report of SPSS Inc. for the year ended December 31, 1998. (File No. 000-22194) (21) Previously filed with SPSS Inc. Report on Form 8-K, dated November 29, 1999, filed December 10, 1999. (File No. 000-22194) (22) Previously filed with the Form 10-Q Quarterly Report of SPSS Inc. for the quarterly period ended June 30, 1999. (File No. 000-22194) (23) Previously filed with the Form 10-Q Quarterly Report of SPSS Inc. for the quarterly period ended September 30, 1999. (File No. 000-22194) (24) Previously filed with the Form 10-K Annual Report of SPSS Inc. for the year ended December 31, 1999. (File No. 000-22194) (25) Previously filed with SPSS Inc. Report on Form 8-K, filed November 15, 2000. (File No. 000-22194) (26) Previously filed with the Form S-4 Registration Statement of SPSS Inc. filed on December 19, 2000. (File No. 333-52216) (27) Previously filed with the Form 10-K Annual Report of SPSS Inc. for the year ended December 31, 2000. (File No. 000-22194) II-4 18 ITEM 17. UNDERTAKINGS (a) SPSS 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 this 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 these 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. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of SPSS's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of these securities at that time shall be deemed to be the initial bona fide offering thereof. (b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling SPSS under the foregoing provisions or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission this indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. If a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer or controlling person of SPSS in the successful defense of any action, suit or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether this indemnification by SPSS is against public policy as expressed in the Act and will be governed by the final adjudication of the issue. II-5 19 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, SPSS 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 the City of Chicago, State of Illinois, on October 5, 2001. SPSS INC. By: /s/ JACK NOONAN ------------------------------------ Jack Noonan President and Chief Executive Officer POWER OF ATTORNEY KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose signature appears immediately below constitutes and appoints Jack Noonan and Edward Hamburg, or any one of them, his true and lawful attorney-in-fact and agent, each with full power of substitution for such person and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and any subsequent registration statement filed by the registrant pursuant to Securities and Exchange Commission Rule 462, which relates to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ NORMAN H. NIE Chairman of the Board of Directors October 5, 2001 ------------------------------------------ Norman H. Nie /s/ JACK NOONAN President, Chief Executive Officer and October 5, 2001 ------------------------------------------ Director Jack Noonan /s/ EDWARD HAMBURG Executive Vice President, Corporate October 5, 2001 ------------------------------------------ Operations, Chief Financial Officer and Edward Hamburg Secretary /s/ ROBERT BRINKMANN Vice President, Finance and Controller, October 5, 2001 ------------------------------------------ Chief Accounting Officer and Assistant Robert Brinkmann Secretary /s/ BERNARD GOLDSTEIN Director October 5, 2001 ------------------------------------------ Bernard Goldstein /s/ MERRITT LUTZ Director October 5, 2001 ------------------------------------------ Merritt Lutz
II-6 20
SIGNATURE TITLE DATE --------- ----- ---- /s/ MICHAEL BLAIR Director October 5, 2001 ------------------------------------------ Michael Blair /s/ KENNETH HOLEC Director October 5, 2001 ------------------------------------------ Kenneth Holec /s/ PROMOD HAQUE Director October 5, 2001 ------------------------------------------ Promod Haque /s/ WILLIAM BINCH Director October 5, 2001 ------------------------------------------ William Binch
II-7 21 SPSS INC. EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION ----------- ----------- 5.1 Opinion of Ross & Hardies Stock Purchase Agreement by and between SPSS Inc. and Siebel 10.31 Systems, Inc. 23.1 Consent of KPMG LLP 23.2 Consent of Ross & Hardies (Included in Exhibit 5.1) Power of Attorney (Included in the Signature Page to this 24.1 Registration Statement).
EX-5.1 3 c65218ex5-1.txt OPINION OF ROSS & HARDIES 1 EXHIBIT 5.1 [ROSS & HARDIES LETTERHEAD] October 5, 2001 SPSS Inc. 233 South Wacker Drive Chicago, Illinois 60606 Re: Registration Statement on Form S-3 Ladies and Gentlemen: We refer to the Registration Statement on Form S-3 (the "Registration Statement") being filed by SPSS Inc., a Delaware corporation, (the "Company") with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), relating to the offer and sale of up to 300,300 shares of Common Stock, $0.01 par value per share (the "Common Stock") of the Company by Siebel Systems, Inc., a Delaware Corporation. Each term used herein that is defined in the Registration Statement and not otherwise defined herein shall have the meaning specified in the Registration Statement. We are familiar with the proceedings to date with respect to the proposed offering of the Common Stock and have examined such records, documents and questions of law, and satisfied ourselves as to such matters of procedure, law and fact, as we have considered relevant and necessary as a basis for the opinion expressed in this letter. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as certified copies or photocopies and the authenticity of the originals of such documents. Based on the foregoing, and subject to the qualifications set forth hereinafter, we are of the opinion that the Common Stock has been duly authorized and, when issued and sold in accordance with the Registration Statement, will be legally issued, fully paid and nonassessable shares of Common Stock of the Company. This opinion is limited to the matters set forth herein. No opinion may be inferred or implied beyond the matters expressly contained herein. We hereby consent to the reference to our firm under the caption "Legal Matters" in the Registration Statement and the related Prospectus, and to the filing of this opinion as an Exhibit to the Registration Statement. Very truly yours, ROSS & HARDIES By: /s/ David S. Guin ------------------------------------- A Partner EX-10.31 4 c65218ex10-31.txt STOCK PURCHASE AGREEMENT 1 EXHIBIT 10.31 STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of the date of acceptance set forth below, is entered into by and between SPSS INC., a Delaware corporation, with headquarters located at 233 South Wacker Drive, Chicago, Illinois 60606 ("SPSS"), and SIEBEL SYSTEMS, INC., a Delaware corporation, with headquarters located at 2207 Bridgepointe Parkway, San Mateo, California 94404 (the "Buyer"). W I T N E S S E T H: WHEREAS, SPSS and the Buyer are executing and delivering this Agreement in accordance with and in reliance upon an exemption from securities registration afforded, inter alia, by Rule 506 under Regulation D ("Regulation D") as promulgated by the United States Securities and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended (the "1933 Act" or the "Act"), and/or Section 4(2) of the 1933 Act; and WHEREAS, the Buyer wishes to purchase, upon the terms and subject to the conditions of this Agreement, such number of newly issued, unregistered shares of common stock, $0.01 par value per share (the "Common Stock") of SPSS as more fully described herein, subject to acceptance of this Agreement by SPSS; NOW THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. AGREEMENT TO PURCHASE; PURCHASE PRICE; CLOSING. a. AGREEMENT TO PURCHASE; PURCHASE PRICE. The undersigned shall purchase from SPSS on the Closing date that number of shares of SPSS Common Stock (the "Shares") calculable based upon a price per share equal to ninety-five percent (95%) of the average of the closing price of SPSS Common Stock, as quoted on the NASDAQ National Market ("NASDAQ") for the ten (10) trading days following SPSS's release of its earnings for the period ending June 30, 2001, which price is $16.65 (the "Per Share Purchase Price"), and an aggregate purchase price equal to FIVE MILLION AND NO/100 DOLLARS ($5,000,000) (subject to adjustment to prevent the issuance of fractional Shares) (the "Purchase Price"). Notwithstanding anything to the contrary contained herein, fractional Shares shall not be issued. In lieu of fractional shares, the Purchase Price shall be adjusted such that only whole Shares shall be issued hereunder. Payment of the Purchase Price will be made by Buyer by wiring immediately available funds in United States dollars to an account designated by SPSS. b. CLOSING. The Closing of the purchase, sale and issuance of the Shares shall take place at the principal office of SPSS, 233 South Wacker Drive, Chicago, Illinois 60606 on or before September 28, 2001 or at such other time and date as the parties hereto may agree (the "Closing"). At the Closing, SPSS shall deliver to the Buyer a certificate or certificates in the Buyer's name for the number of Shares set forth on the signature page hereto, against receipt from the Buyer of the Purchase Price. 1 2 2. BUYER REPRESENTATIONS AND WARRANTIES. The Buyer represents and warrants to, and covenants and agrees with, SPSS as follows: a. Without limiting Buyer's right to sell the Common Stock pursuant to the Registration Statement (as defined below), the Buyer is purchasing the Shares for its own account for investment only and not with a view towards the resale or distribution of any part thereof and not with a view to or for sale in connection with any distribution thereof. b. The Buyer is (i) an "accredited investor" as that term is defined in Rule 501 of Regulation D as presently in effect, (ii) experienced in making investments of the kind described in this Agreement and the related documents, (iii) able, by reason of the business and financial experience of its officers (if an entity) and/or professional advisors (who are not affiliated with or compensated in any way by SPSS or any of its affiliates or selling agents), to protect its own interests in connection with the transactions described in this Agreement, and the related documents, and (iv) able to afford the entire loss of its investment in the Shares. c. The Buyer understands that the Shares have not been registered under the 1933 Act, or any applicable state securities laws. Therefore, the Buyer shall not sell or offer to sell the Shares except pursuant to registration of the Shares under the 1933 Act or an exemption from registration requirements of United States federal and state securities laws and in compliance with all applicable state securities laws. d. The Buyer understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that SPSS is relying upon the truth and accuracy of, and the Buyer's compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire the Shares. e. The Buyer and its advisors have been furnished with all materials relating to the business, finances and operations of SPSS and materials relating to the offer and sale of the Shares which have been requested by the Buyer. The Buyer and its advisors have been afforded the opportunity to ask questions of SPSS and have received complete and satisfactory answers to any such inquiries. f. The Buyer understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares. g. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Buyer and is a valid and binding agreement of the Buyer enforceable in accordance with its terms, subject as to enforceability to general principles of equity and to bankruptcy, insolvency, moratorium and other similar laws affecting the enforcement of creditors' rights generally. 2 3 3. SPSS REPRESENTATIONS AND WARRANTIES. SPSS represents and warrants to the Buyer that: a. SPSS STATUS. (i) SPSS is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has the requisite power (corporate and other) and authority to own its properties, to carry on its business as now being conducted and to perform its obligations under any contract filed as an exhibit to any SPSS SEC Documents (as defined below). (ii) SPSS is qualified to do business as a foreign corporation, and is in good standing, in each jurisdiction in which the nature of its business and of its properties makes such qualification necessary, except where the failure to be so qualified would not have a material adverse effect on SPSS's business, condition (financial or otherwise), assets, liabilities or operations. b. SEC FILINGS; FINANCIAL STATEMENTS. (i) SPSS has made available to the Buyer accurate and complete copies of each report, registration statement and definitive proxy statement filed by SPSS with the SEC since August 4, 1993 (the "SPSS SEC Documents"). As of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing): (a) each of the SPSS SEC Documents complied in all material respects with the applicable requirements of the 1933 Act or the 1934 Act (as defined herein), as the case may be; and (b) none of the SPSS SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. There are no contracts or other documents of SPSS that are required to be filed as exhibits to the SPSS SEC Documents which have not been filed. (ii) The consolidated financial statements contained in the SPSS SEC Documents: (a) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (b) were prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods covered, except as may be indicated in the notes to such financial statements and (in the case of unaudited statements) as permitted by Form 10-Q promulgated by the SEC, and except that unaudited financial statements may not contain footnotes and are subject to year-end audit adjustments (which are not reasonably expected to be, individually or in the aggregate, material in 3 4 amount); and (c) fairly present the consolidated financial position of SPSS and its subsidiaries as of the respective dates thereof and the consolidated results of operations of SPSS and its subsidiaries for the periods covered thereby. (iii) Except for the liabilities included or reserved for in the audited balance sheet of the Company for the year ended December 31, 2000, included in the Form 10-K or the unaudited consolidated balance sheet of SPSS included in its Quarterly Report on Form 10-Q (the "Form 10-Q") for the quarter ended June 30, 2001 (the "Balance Sheet"), each as filed with the SEC, SPSS did not have, and since such date it has not incurred, liabilities or any other obligations whatsoever that are material (individually or in the aggregate) to SPSS, except current liabilities incurred in the ordinary course of business consistent with past practice subsequent to June 30, 2001. c. AUTHORIZED SHARES. The Shares have been duly authorized and, when issued to Buyer, will be duly and validly issued, fully paid and non-assessable. d. AUTHORITY; BINDING AGREEMENT. SPSS has the absolute and unrestricted right, power and authority to enter into and perform its obligations under this Agreement, and the execution, delivery and performance by SPSS of this Agreement and the transactions contemplated hereby (including the contemplated issuance of the Shares), have been duly and validly authorized by SPSS, this Agreement has been duly executed and delivered by SPSS. No vote of SPSS's stockholders is needed to approve the sale and issuance of the Shares to the Buyer. This Agreement, when executed and delivered by SPSS, will be a legal, valid and binding agreement of SPSS, enforceable against it in accordance with its terms, subject as to enforceability to general principles of equity and to bankruptcy, insolvency, moratorium, and other similar laws affecting the enforcement of creditors' rights generally. e. NON-CONTRAVENTION. The execution and delivery of this Agreement by SPSS, the issuance of the Shares, and the consummation by SPSS of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SPSS of any of the terms or provisions of, or constitute a default under (i) the articles of incorporation or by-laws of SPSS, (ii) any indenture, mortgage, deed of trust, or other material agreement or instrument to which SPSS is a party or by which it or any of its properties or assets are bound, (iii) to its knowledge, any existing applicable law, rule, or regulation or any applicable decree or judgment, or (iv) to its knowledge, order of any court, United States federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over SPSS or any of its properties or assets, except any such conflict, breach or default which would not have a material adverse effect on the transactions contemplated herein. f. APPROVALS. No authorization, approval or consent of any court, governmental body, regulatory agency, self-regulatory organization, stock exchange or market or third party is required to be obtained by SPSS for the issuance and sale of the Shares to the Buyer as contemplated by this Agreement, except such authorizations, approvals and consents that have been obtained. 4 5 g. OFFERING VALID. Assuming the accuracy of the representations and warranties of the Buyer contained in Section 2 hereof, the offer, sale and issuance of the Shares will be exempt from the registration requirements of the Securities Act and will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws. Neither SPSS nor any agent on its behalf has solicited or will solicit any offers to sell or has offered to sell or will offer to sell all or any part of the Shares to any person or persons or take any other action so as to bring the sale of such Shares by SPSS within the registration provisions of the 1933 Act or any state securities laws. h. ABSENCE OF CHANGES. From June 30, 2001 to the date of this Agreement, there has not been any material adverse change in SPSS's business, condition (financial or otherwise), assets, liabilities or operations and SPSS has carried on its business in the ordinary course consistent with past practices. i. LEGAL PROCEEDINGS; ORDERS. There is no pending Legal Proceeding and to the best of SPSS's knowledge, no person or entity has threatened to commence any Legal Proceeding (i) against SPSS that could reasonably be expected to have a material adverse effect on SPSS's business, condition (financial or otherwise), assets, liabilities or operations (other than any actual or threatened Legal Proceeding that has been previously disclosed by SPSS in any of the SPSS SEC Documents); or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the sale and issuance of the Shares of the Buyer. To the best of SPSS's knowledge, no event has occurred, and no claim, dispute or other condition or circumstance exists, that will, or that could reasonably be expected to, give rise to or serve as a basis for the commencement of any such Legal Proceeding. j. REGISTRATION STATEMENT ELIGIBILITY. SPSS is eligible to use a Registration Statement on Form S-3. 4. SECURITIES MATTERS a. REGISTRATION OF SPSS COMMON STOCK. (i) SPSS shall prepare and file with the SEC a registration statement on Form S-3 (together with all amendments and supplements to any such registration statement, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement, the "Registration Statement") under the 1933 Act, and the rules and regulations promulgated thereunder, for the registration (the "Registration") of the offering of the Shares for the account of the Buyer. SPSS shall take such steps as are reasonably required to register such SPSS Common Stock for sale on a delayed or continuous basis under Rule 415 of the 1933 Act and, provided that Form S-3 shall be available to SPSS for the Registration, to keep such Registration Statement continuously effective, current and available for use by the Buyer until such time as all of the Shares have been sold by the Buyer (the "Trading Period"). 5 6 (ii) The Buyer shall cooperate with SPSS in connection with the Registration and shall provide such information and execute such documents as SPSS shall reasonably request in connection with the Registration. (iii) SPSS shall permit the Buyer, at Buyer's cost and expense (except as otherwise specifically provided in Section 4(c), to review and have a reasonable opportunity to comment on the Registration Statement and all amendments and supplements thereto at least three (3) business days prior to their filing with the SEC and shall not file any such document to which Buyer reasonably objects. (iv) Subject to Buyer's rights under clause (iii) above, SPSS hereby covenants and agrees that it will file the Registration Statement with the SEC no more that eight (8) business days following the Closing and, if the Registration Statement is reviewed by the SEC and the SEC provides comment with respect thereto ("SEC Comment"), will A) promptly provide to Buyer 1) a copy of any written SEC Comment with the date on which SPSS received SEC Comment, 2) a written summary of any SEC Comment received by SPSS in verbal, non-written format from the SEC and the date on which SPSS received SEC Comment, B) prepare and file a response, including, if necessary, an amendment to the Registration Statement, no more than eight (8) business days following the date on which SPSS receives such comments, and C) provide to Buyer a copy of any response by SPSS to a SEC Comment and the date on which SPSS delivered the response to the SEC Comment to the SEC. (v) SPSS hereby covenants and agrees that it will file a request for acceleration pursuant to Rule 461 no more than five (5) business days following the date on which it is advised by the SEC that the SEC does not intend to comment or further comment, as the case may be, on the Registration Statement. (vi) In the event that SPSS shall fail to satisfy its obligations under either clause (iii) or (iv) above, notwithstanding SPSS's receipt of Buyer's written approval of the contents of the Registration Statement or any applicable amendment or supplement thereto within three (3) business days after the date on which SPSS has delivered the Registration == Statement or any amendment or supplement thereto to Buyer for its review pursuant to clause (iii) above, SPSS shall pay Siebel an amount equal to $2,500 for each full business day during which such failure is continuing, provided, however, that SPSS's maximum liability for all such failures shall not exceed $100,000. Payment of penalties under this subsection 4(a) shall be made by SPSS to Buyer on the fifth (5th) day of each calendar month following the date on which the penalty occurs for the amount of penalties owed for the prior calendar month. 6 7 (vii) SPSS shall not grant to any holder of shares of SPSS Common Stock registration rights that interfere with the rights of the Buyer and the obligations of SPSS under this Section 4. b. SALES OF SPSS COMMON STOCK BY THE BUYER. If at any time prior to the effectiveness of the Registration Statement the Buyer elects to sell all or any portion of the Shares, the Buyer shall conduct such sales only through registered securities brokers ("brokers"). c. REGISTRATION EXPENSES. SPSS shall be responsible for and shall pay all fees, costs and expenses incurred by it relating to the Registration, including without limitation, all SEC and securities exchange, NASDAQ registration and filing fees, and all fees and expenses of compliance by SPSS with the federal securities laws or any applicable state blue sky laws. d. RESTRICTED STOCK. The Buyer understands and agrees, as follows: (i) That the Shares are not currently subject to a registration statement under the 1933 Act, and are issued pursuant to exemptions from registration under the 1933 Act which exemptions depend, among other things, on the bona fide nature of their investment intent. (ii) That Buyer shall not transfer the Shares except in compliance with the provisions of the 1933 Act. Any proposed transferee of any of the Shares shall agree to take and hold such securities upon the conditions set forth in Section 4(d)(iii) hereof. (iii) Until the Registration Statement is declared effective, each certificate representing any of such Shares shall be stamped or otherwise imprinted with a legend in substantially the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT UNDER AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN EXEMPTION THEREFROM OR IN CONTRAVENTION OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER. When the Shares may be sold pursuant to the Registration Statement, SPSS will, upon request of the Buyer, cause SPSS's transfer agent to exchange the share certificates legended as set forth above for unlegended share certificates. (iv) Unless a registration statement under the 1933 Act covering transactions in the SPSS Common Stock to be received by the Buyer pursuant to this Agreement has been declared effective by the SEC and such registration 7 8 statement remains effective at the time of transfer, each holder of shares of SPSS Common Stock to be received by the Buyer pursuant to this Agreement shall comply in all respects with the provisions of this Section 4(d). Prior to any proposed transfer of any such securities, the holder thereof shall give written notice to SPSS of such holder's intention to effect such transfer and shall comply with the requirements set forth in the balance of this section. Each such notice shall describe the manner and circumstances of the proposed transfer in reasonable detail, and shall be accompanied by (1) a written opinion of legal counsel who shall be reasonably satisfactory to SPSS, addressed to SPSS, to the effect that the proposed transfer of such securities may be effected without registration under the 1933 Act, (2) a "no action" letter from the SEC to the effect that the distribution of such securities without registration will not result in a recommendation by the staff of the SEC that action be taken with respect thereto, or (3) such other showing satisfactory to SPSS and its counsel, which satisfaction shall not be unreasonably withheld or delayed, that the proposed transfer of such securities may be effected without registration under the 1933 Act, whereupon the holder of such securities shall be entitled to transfer such securities in accordance with the terms of the notice delivered by the holder to SPSS. e. INDEMNIFICATION. When the SPSS Common Stock held by the Buyer is included in a registration statement under this Section 4: (i) SPSS will indemnify and hold harmless the Buyer, any underwriter (as defined in the 1933 Act) for the Buyer and each person, if any, who controls the Buyer or underwriter within the meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the 1933 Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (a) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (b) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (c) any violation or alleged violation by SPSS of the 1933 Act, the 1934 Act, any state securities law or any rule or regulation promulgated under the 1933 Act, the 1934 Act or any state securities law; and SPSS will pay to the Buyer, underwriter or controlling person, any and all legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this subsection 4(e)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such 8 9 settlement is effected without the consent of SPSS, which consent shall not be unreasonably withheld or delayed, nor shall SPSS be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished by the Buyer any controlling person of the Buyer expressly for use in connection with such registration. (ii) The Buyer will indemnify and hold harmless SPSS, each of its directors, each of its officers who has signed the registration statement, each person, if any, who controls SPSS within the meaning of the 1933 Act, any underwriter, and any controlling person of any such underwriter, against any losses, claims, damages, or liabilities (joint or several) to which any of the foregoing persons may become subject, under the 1933 Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by the Buyer expressly for use in connection with such registration, and the Buyer will pay, as incurred, any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this subsection 4(e)(ii), in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this subsection 4(e)(ii) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Buyer, which consent shall not be unreasonably withheld or delayed. In no event shall the liability of the Buyer hereunder be greater in amount than the dollar amount paid by Buyer for the Shares purchased pursuant to this Agreement. (iii) Promptly after receipt by an indemnified party under this Section 4(e) of notice of any claim, demand or the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4(e), deliver to the indemnifying party a written notice of the claim, demand or action and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to a conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The 9 10 failure to deliver written notice to the indemnifying party within a reasonable time of receipt by the indemnified party of notice of such claim, demand or commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 4(e). (iv) If the indemnification provided for in this Section 4(e) from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative faults of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any fees, charges or expenses (including fees, disbursements and other charges of legal counsel) reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person. f. ADDITIONAL OBLIGATIONS OF SPSS. With respect to any registration hereunder, SPSS shall: (i) Use its best efforts to cause the Registration Statement to become effective as soon as possible after the filing of the Registration Statement, but in no event later than ten (10) business days thereafter (assuming that the SEC does not review the Registration Statement). If the SEC reviews the Registration Statement, the Company shall use its best efforts to cause such Registration Statement to become effective as soon as possible after the filing of the Registration Statement, which efforts shall include, but not be limited to, promptly responding to all SEC comments in an appropriate manner. The Company shall use its best efforts to cause the Registration Statement to remain effective for the period set forth in Section 4.a.(i). 10 11 (ii) Prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective throughout the Trading Period and to comply with the provisions of the 1933 Act with respect to the sale or other disposition of the Shares covered by the Registration Statement. (iii) Furnish to the Buyer such numbers of copies of the Registration Statement, a prospectus, including a preliminary prospectus, and any amendments and supplements thereto, in conformity with the requirements of the 1933 Act, such documents incorporated by reference in the Registration Statement and such other documents as the Buyer may reasonably request in order to facilitate the disposition of shares of SPSS Common Stock owned by it. (iv) Promptly notify the Buyer, at any time when a prospectus relating thereto covered by the Registration Statement is required to be delivered under the 1933 Act, upon SPSS becoming aware that the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and immediately thereafter, use reasonable efforts to prepare and file with the SEC as soon as possible and furnish to the Buyer a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they are made. (v) Use reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Buyer or appropriate for the distribution of the securities covered by the registration statement. (vi) To the extent required by NASDAQ requirements, notify NASDAQ of the issuance of the shares of SPSS Common Stock covered by such registration. g. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the Buyer the benefits of Rule 144 promulgated under the 1933 Act and any other rule or regulation of the SEC that may at any time permit the Buyer to sell securities of SPSS to the public without registration, SPSS agrees to use its reasonable efforts to: 11 12 (i) make and keep public information available, as those terms are understood and defined in Rule 144, at all times; (ii) file with the SEC in a timely manner all reports and other documents required of SPSS under the 1933 Act and the 1934 Act; and (iii) furnish to the Buyer forthwith upon request a written statement by SPSS that it has complied with the reporting requirements of Rule 144 and of the 1933 Act and the 1934 Act, a copy of the most recent annual or quarterly report of SPSS, and such other reports and documents so filed by SPSS as may be reasonably requested in availing the Buyer of any rule or regulation of the SEC permitting the selling of any securities of SPSS held by it without registration. h. THIRD-PARTY REGISTRATION RIGHTS. Until the Registration Statement becomes effective, (i) SPSS shall not grant future registration rights to any third party without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed (provided, however, that this subsection 4(h)(i) shall not apply to any registration rights of any third party granted prior to the date hereof), and (ii) Buyer may assign its registration rights granted hereunder to one or more of its affiliates. 5. ATTENDANCE AT MEETINGS OF SPSS INDUSTRY ADVISORY BOARD. For so long as the Buyer holds at least ten percent (10%) of the Shares, Richard Gorman or another individual designated by the Buyer, in Buyer's sole discretion, (which designee shall be reasonably acceptable to SPSS) shall be entitled to attend (at the Buyer's expense) all meetings of SPSS's industry advisory board (the "Industry Advisory Board"). SPSS shall give the Buyer adequate notice of meetings of SPSS's Industry Advisory Board, provided, however, that SPSS reserves the right to exclude such representative from access to any material or meeting or any portion thereof if SPSS reasonably believes upon advice of counsel that such exclusion is necessary to preserve the attorney-client privilege or to protect highly confidential proprietary information. The Buyer shall be entitled to receive all written materials and other information given to directors in connection with any meeting of the Industry Advisory Board as soon as practicable after such materials and other information have been given to the other attendees thereof. The Buyer shall not be entitled to attend, or have any individual designated by the Buyer attend, any meetings of the Board of Directors of SPSS without the express approval of an officer or the Board of Directors of SPSS. 6. CONDITIONS TO CLOSING a. CONDITIONS TO THE BUYER'S OBLIGATION. The obligation of the Buyer to purchase and pay for the Shares to be purchased by it at the Closing is subject to the following conditions (all of which, other than breaches of representation, warranties and covenants not known to that Buyer at Closing, shall be deemed satisfied or waived by the Buyer at or prior to the Closing in the event all of the transactions contemplated to be effected at the Closing are consummated and all or any of which in any case may be waived by the Buyer at or prior to Closing): 12 13 (i) REPRESENTATIONS AND WARRANTIES. Each of the representations and warranties of SPSS set forth in Section 3 hereof shall be true, accurate and correct on and as of the Closing with the same effect as though such representations and warranties had been made as of the Closing. (ii) PERFORMANCE. SPSS shall have performed and complied with all agreements, obligations, and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing. (iii) CLOSING DOCUMENTS. SPSS shall have delivered to the Buyer each of the documents set forth in Section 7.a. (iv) QUALIFICATIONS. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be duly obtained and effective as of the Closing. (v) PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Buyer's special counsel, and it shall have received all such counterpart original and certified or other copies of such documents as it may reasonably request. b. CONDITIONS TO SPSS'S OBLIGATION. The obligation of SPSS to sell and issue the Shares to the Buyer at Closing is subject to the following conditions (all of which shall be deemed satisfied or waived by SPSS at or prior to Closing in the event all of the transactions contemplated to be effected at the Closing are consummated and all or any of which in any case may be waived by SPSS at or prior to Closing): (i) REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Buyer set forth in Section 2 hereof shall be true, accurate and correct on and as of the Closing with the same effect as though such representations and warranties had been made as of the Closing. (ii) SECURITIES LAW QUALIFICATION. The offer and sale to the Buyer of the Shares shall be qualified or exempt from qualification under all applicable federal and state securities laws. (iii) PERFORMANCE. The Buyer shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing. 13 14 7. CLOSING DELIVERIES a. CLOSING DELIVERIES OF SPSS. The Buyer shall have received prior to or at the Closing all of the following documents, each in form and substance reasonably satisfactory to the Buyer and its counsel: (i) A certificate of the Chief Executive Officer and the Chief Financial Officer of SPSS stating that (a) the representations and warranties of SPSS set forth in Section 3 hereof are true, accurate and correct on and as of the Closing, and (b) all agreements, obligations and conditions contained in this Agreement required to be performed and complied with by SPSS prior to or at the Closing have been performed as of the Closing and (c) that there shall have been no adverse change in the business, affairs, operations, properties, assets or condition of SPSS since June 30, 2001. (ii) A stock certificate evidencing the Shares. (iii) Certified copies of the resolutions duly adopted by SPSS's board of directors authorizing the execution, delivery and performance of this Agreement and each of the other agreements contemplated hereby, the issuance and sale of the Shares and the consummation of all other transactions contemplated by this Agreement. (iv) An opinion of Ross & Hardies, counsel for SPSS, dated as of the Closing, in the form attached hereto as Exhibit A. (v) A certificate of good standing issued by the Secretary of State of the State of Delaware. (vi) Copies of all third party and governmental consents, approvals and filings required in connection with the consummation of the transactions hereunder. b. CLOSING DELIVERIES OF THE BUYER. SPSS shall have received prior to or at the Closing all of the following materials or documents, each in the form and substance reasonably satisfactory to SPSS and its counsel: (i) The Purchase Price. (ii) A certificate of the Chief Financial Officer of the Buyer stating that the representations and warranties of the Buyer set forth in Section 2 hereof are true, accurate and correct in all material respects on and as of the Closing and that all agreements, obligations and conditions contained in this Agreement required to be performed and complied with by the Buyer prior to or at the Closing have been performed as of the Closing. 14 15 8. MISCELLANEOUS a. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of any party to this Agreement in exercising any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. b. AMENDMENTS, WAIVERS AND CONSENTS. This Agreement may be amended only by an instrument in writing signed by both parties hereto. Any waiver or consent may be given subject to satisfaction of conditions stated therein and any waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. c. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of SPSS and the Buyer and their respective heirs, successors and assigns. d. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and warranties made in this Agreement or any other instrument or document delivered in connection herewith, shall survive the execution and delivery hereof or thereof and shall terminate one year from the date of this Agreement. e. PRIOR AGREEMENTS. This Agreement and the Mutual Non-Disclosure Agreement attached as Exhibit B to the Letter of Intent dated June 28, 2001 between the Buyer and SPSS, and any related documents constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all other written or oral agreements relating to the subject matter hereof existing between the parties hereto are expressly canceled. f. SEVERABILITY. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement or the validity or enforceability of this the Agreement in any other jurisdiction. g. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with the internal laws of the State of California, without giving effect to its conflict of laws principles. h. HEADINGS. Article, section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. i. COUNTERPARTS. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. j. FURTHER ASSURANCES. From and after the date of this Agreement, upon the request of SPSS, the Buyer shall execute and deliver such instruments, documents and other 15 16 writings as may be reasonably necessary to confirm and carry out and to effectuate fully the intent and purposes of this Agreement and the Shares. 9. NOTICES. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall be deemed effectively given, (i) on the date delivered, (a) if by personal delivery, or (b) if advance copy is given by fax, (ii) seven business days after deposit in the United States Postal Service by regular or certified mail, or (iii) three business days mailing by international express courier, with postage and fees prepaid, addressed to each of the other parties thereunto entitled at the following addresses, or at such other addresses as a party may designate by ten days advance written notice to each of the other parties hereto: SPSS: SPSS Inc. 233 South Wacker Drive Chicago, Illinois 60606 Attention: Jack Noonan President and Chief Executive Officer Facsimile: 312-651-3558 with a copy to: Lawrence R. Samuels, Esq. Ross & Hardies 150 North Michigan Avenue Suite 2500 Chicago, Illinois 60601 Facsimile: 312-750-8600 BUYER: Siebel Systems, Inc. 2207 Bridgepointe Parkway San Mateo, California 94404 Attention: Vice President, Legal Affairs Facsimile: 650-477-7343 10. MOST FAVORED NATION. During the six-month period after the Closing, SPSS shall not issue or sell any security of SPSS at less than 95% of the then-current ten-day average trading price of the SPSS Common Stock or on terms otherwise more favorable to those offered to Buyer without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed. This provision shall not apply to shares of capital stock issued upon exercise of SPSS stock options, shares issued pursuant to SPSS's employee stock purchase plan or shares issued in connection with a merger with or acquisition of the stock or assets of another entity. 16 17 11. NO PUBLICITY. Except to the extent required by applicable law or a court of competent jurisdiction, SPSS shall not make any public announcement that refers to or identifies Buyer as an investor in SPSS without Buyer's prior written consent which consent shall not be unreasonably withheld or delayed. IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date set forth below. BUYER: SIEBEL SYSTEMS, INC., a Delaware corporation By: ------------------------------------------ Name: Title: Dated: --------------------------------------- THIS AGREEMENT HAS BEEN ACCEPTED AS OF THE DATE SET FORTH BELOW. SPSS: SPSS INC., a Delaware corporation By: ----------------------------------------- Jack Noonan President and Chief Executive Officer Dated: -------------------------------------- 17 EX-23.1 5 c65218ex23-1.txt CONSENT OF KPMG LLP 1 EXHIBIT 23.1 CONSENT OF KPMG LLP The Board of Directors SPSS Inc.: We consent to the incorporation by reference of our report dated March 30, 2001, with respect to the consolidated balance sheets of SPSS Inc. as of December 31, 2000 and 1999, and the related consolidated statements of income, comprehensive income, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 2000, and the related financial statement schedule and to the reference to our firm under the heading "Experts" in the prospectus. /s/ KPMG LLP Chicago, Illinois October 4, 2001