As filed with the Securities and Exchange Commission on June 30,
1997
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
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REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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BGS SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2559993
(State or other (I.R.S.
jurisdiction Employer
of incorporation) Identification No.)
ONE FIRST AVENUE, WALTHAM, MASSACHUSETTS 02254-9111
(Address of Principal Executive Office)
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1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
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C. Russel Hansen, Jr.
Vice President and General Counsel
BGS Systems, Inc.
One First Avenue
Waltham, Massachusetts 02254-9111
(617) 891-0000
(Name, address and telephone number of Agent for Service)
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CALCULATION OF REGISTRATION FEE
Title of each
class of Proposed maximum Proposed maxi- Amount
securities to Amount to offering price mum aggregate of Registra-
be registered be registered per share (1) offering price (1) tion fee
- ------------- ----------- ------------ ------------ -----------
Common Stock, 150,000 $27.50 $4,125,000 $1,250.00
$0.10 par value shares
(1) Estimated solely for the purpose of determining the
registration fee and computed pursuant to Rule 457(h) and based
upon the average of the high and low sale prices on June 26, 1997,
as reported by The Nasdaq National Market System.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by
reference:
(a) The Registrant's latest annual report on Form 10-K filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(b) All other reports of the Registrant filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the annual report referred to in (a) above.
(c) The description of the Registrant's Common Stock contained
in its Registration Statement on Form S-1 (File No. 2-83449) filed
on May 2, 1983, including any amendment or report filed with the
purpose of updating such description.
All documents filed after the date of this Registration Statement
by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act and prior to the filing of a post-effective
amendment which indicates that all shares of Common Stock offered
hereunder have been sold or which deregisters all shares of Common
Stock remaining unsold shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the
filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock offered hereby will be passed
upon for the Registrant by C. Russel Hansen, Jr., Vice President
and General Counsel.
Mr. Hansen owns beneficially, within the meaning of Rule 13d-3,
896,466 shares of the Registrant s Common Stock, $0.10 par value
( Stock ). These shares include (a) 752,122 shares of Stock owned
by the Robert P. Goldberg Revocable Trust #2, of which shares Mr.
Hansen is a Trustee and (b) 122,320 shares of Stock held of record
by four irrevocable trusts of which Mr. Hansen is a co-trustee for
the benefit of children who are not related to Mr. Hansen. Mr.
Hansen disclaims beneficial ownership of all 874,442 shares. The
shares also include 16,000 shares of Stock subject to options
which Mr. Hansen has the right to acquire within 60 days of June
30, 1997 through the exercise of options.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 5 of the Corporation s By-Laws provides that the
Corporation shall, to the fullest extent authorized by Chapter
156B of the Massachusetts General Laws, as the same exists or may
hereafter be amended (in the case of any such amendment, only to
the extent that such amendment either (i) permits the Corporation
to provide broader indemnification rights than such laws permitted
prior to such amendment or (ii) prohibits or limits any of the
indemnification rights previously set forth in such laws,
indemnify each person who is, or shall have been, a director or
officer of the Corporation or who is or was a director or employee
of the Corporation and is serving, or shall have served, at the
request of the Corporation, as director or officer of another
organization or in any capacity with respect to any employee
benefit plan of the Corporation, against all liabilities and
expenses (including judgments, fines, penalties, amounts paid or
to be paid in settlement, and reasonable attorneys fees) imposed
upon or incurred by any such person (the Indemnitee ) in
connection with, or arising out of, the defense or disposition of
any action, suit or other proceeding, whether civil or criminal,
in which he may be a defendant or with which he may be threatened
or otherwise involved, directly or indirectly, by reason of his
being or having been such a director or officer or as a result of
his serving or having served with respect to any such employee
benefit plan. The Corporation, however, shall provide no
indemnification with respect to any matter as to which any
Indemnitee shall be finally adjudicated in such action, suit or
proceeding not to have acted in good faith in the reasonable
belief that his action was (i) in the best interests of the
Corporation or (ii) to the extent such matter relates to service
with respect to an employee benefit plan, in the best interests of
the participants or beneficiaries of such employee benefit plan.
The Corporation provides indemnification with respect to any
settled or compromised matter unless such settlement or compromise
shall have been determined by a disinterested majority of the
Corporation's Board of Directors (or, if there are fewer than two
disinterested directors, then by the Corporation s independent
legal counsel) not to have been in the best interests of the
Corporation or benefit plan as the case may be.
The right of indemnification includes the right to be paid by the
Corporation for expenses incurred in defending a civil or criminal
action, suit or proceeding in advance of its final disposition,
subject to an undertaking by the Indemnitee to repay such payment
if it is ultimately determined that the Indemnitee is not entitled
to indemnification. No advance is to be made by the Corporation,
however, if a determination is reasonably and promptly made by a
disinterested majority of the Corporation's Board of Directors (or
if there are fewer than two disinterested directors, then by the
Corporation's independent legal counsel) that such Indemnitee did
not act in good faith in the reasonable belief that his action was
in the best interests of the Corporation or benefit plan, as the
case may be.
The right to indemnification and the payment of expenses incurred
in defending any action, suit or proceeding in advance of its
final disposition conferred in the By-Laws is not exclusive of any
other right which any person may have or hereafter acquire under
any statute, provision of the Articles of Organization, By-Laws,
agreement, vote of stockholders or directors or otherwise. The
Corporation, acting through its Board of Directors, may enter into
agreements with any director, officer, employee or agent of the
Corporation providing for indemnification rights equivalent to or
greater than the indemnification rights set forth in the By-Laws.
The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer, employee or
agent of the Corporation or another organization or employee
benefit plan against any expense or liability incurred by him in
any such capacity, or arising out of the status as such, whether
or not the Corporation would have the power to indemnify such
person against such expense or liability under Chapter 156B of the
Massachusetts General Laws.
Without the consent of a person entitled to the indemnification
and other rights provided in the By-Laws (unless otherwise
required by Chapter 156B of the Massachusetts General Laws), no
amendment modifying or terminating such rights shall adversely
affect such person s rights under the By-Laws with respect to the
period prior to such amendment.
If the Corporation is merged into or consolidated with another
corporation and the Corporation is not the surviving corporation,
or if substantially all of the assets of the Corporation are
acquired by any other corporation, or in the event of any other
similar reorganization involving the Corporation, the Board of
Directors of the Corporation or the board of directors of any
corporation assuming the obligations of the Corporation shall
assume the obligations of the Corporation under the By-Laws,
through the date of such merger, consolidation or reorganization
with respect to each person who is entitled to indemnification
rights under the By-Laws as of such date.
If Article 5 of the Corporation's By-Laws or any portion thereof
is invalidated on any grounds by any court of competent
jurisdiction, the Corporation shall nevertheless indemnify each
Indemnitee as to any liabilities and expenses with respect to any
action, suit or proceeding that shall not have been invalidated to
the fullest extent permitted by that Article and applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
ITEM 8. EXHIBITS. See Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which
individually or in the aggregate, represents a fundamental change
in the information set forth in this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in the registration statement; provided, however, that paragraphs
9 (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defenses of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Waltham, Commonwealth of Massachusetts, on this 24th day of
June 1997.
BGS SYSTEMS, INC.
(Registrant)
By: /S/ Harold S. Schwenk, Jr.
___________________________________
Harold S. Schwenk, Jr.
Chairman of the Board,
President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of BGS Systems, Inc.,
hereby severally constitute and appoint Harold S. Schwenk, Jr.,
Normand Bilodeau and C. Russel Hansen, Jr., and each of them
singly, our true and lawful attorneys-in-fact, with full power to
them in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 (including any post-effective
amendments thereto), and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities
and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact may 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 below by the following
persons in the capacities indicated on this 24th day of June
1997.
Signature Capacity
/S/ Harold S. Schwenk, Jr. Chairman of the Board,
______________________________ President, Chief
Harold S. Schwenk, Jr. Executive Officer
(Principal Executive
Officer)
/S/ Normand Bilodeau Chief Financial Officer
_____________________________ (Principal Financial and
Normand Bilodeau Accounting Officer)
/S/ Jeffrey P. Buzen
_____________________________ Director
Jeffrey P. Buzen
/S/ Paul R. Duncan
____________________________ Director
Paul R. Duncan
/S/ Judith N. Goldberg
_____________________________ Director
Judith N. Goldberg
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following
persons in the capacities indicated on this 24th day of June
1997.
Signature Capacity
By: /S/ Harold S. Schwenk, Jr. Chairman of the Board,
___________________________ President, Chief
Harold S. Schwenk, Jr. Executive Officer
(Principal Executive
Officer)
By: /S/ Normand Bilodeau
___________________________ Chief Financial Officer
Normand Bilodeau (Principal Financial
and Accounting Officer)
By: /S/ Jeffrey P. Buzen
___________________________ Director
Jeffrey P. Buzen
By: /S/ Paul R. Duncan
___________________________ Director
Paul R. Duncan
By: /S/ Judith N. Goldberg
__________________________ Director
Judith N. Goldberg
INDEX TO EXHIBITS
5 Opinion of C. Russel Hansen, Jr. (filed herewith).
23.1 Consent of C. Russel Hansen, Jr. (contained in Exhibit 5).
23.2 Consent of Ernst & Young LLP, Independent Auditors (filed
herewith).
24 Power of Attorney (Included in the signature page hereto).
99 BGS Systems, Inc. 1997 Employee Stock Purchase Plan
(Incorporated by reference to Exhibit A to the Registrant's
Proxy Statement dated June 10, 1997).