UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 3, 2003
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ROSS SYSTEMS, INC.
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(Exact name of Registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation)
0-19092 94-2170198
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(Commission File Number) (IRS Employer Identification No.)
Two Concourse Parkway, Suite 800, Atlanta, Georgia 30328
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(Address of principal executive offices) (Zip Code)
770-351-9600
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(Registrant's telephone number, including area code)
ITEM 5. Other Events and Required FD Disclosure
On September 4, 2003, chinadotcom corporation, CDC Software Holdings, Inc.
and Ross Systems, Inc. (collectively, the "Parties") entered into an Agreement
and plan of Merger (the "Merger Agreement") providing for the merger (the
"Merger") of CDC Software Holdings, Inc. with and into Ross Systems, Inc., with
Ross Systems, Inc. surviving as a wholly owned subsidiary of chinadotcom
corporation. The Merger Agreement contemplated that the Parties would explore
whether the Merger could be effected as a tax-free organization. Between
September 4, 2003 and October 2, 2003, the Parties and their counsel examined
this issue, but concluded that given the complexities associated with attempting
to effect the Merger as a tax-free reorganization, as well as certain potential
adverse consequences associated with effecting the Merger on that basis, it was
in the best interests of Ross and its stockholders to effect the Merger as a
taxable transaction.
On October 3, 2003, the Parties executed an amendment to the Merger
Agreement removing the obligations of the Parties to use their reasonable best
efforts to cause the Merger to qualify as a tax-free reorganization and removing
chinadotcom's obligation to cause its outside counsel to deliver an opinion to
Ross and its stockholders relating to a tax-free reorganization. The amendment
to the Merger Agreement is attached as Exhibit 99.1.
ITEM 7. Financial Statements, Pro Forma Financial Statements and Exhibits
(c) Exhibits
Exhibit No. Description
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99.1 Amendment dated October 3, 2003 to the Agreement and Plan of
Merger dated September 4, 2003, by and among chinadotcom
corporation, CDC Software Holdings, Inc. and Ross Systems,
Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ROSS SYSTEMS, INC.
(Registrant)
By: /s/ Verome M. Johnston
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Verome M. Johnston
Vice President and Chief Financial Officer
Dated: October 10, 2003
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EXHIBIT INDEX
Number Description
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99.1 Amendment dated October 3, 2003 to the Agreement and
Plan of Merger dated September 4, 2003, by and among
chinadotcom corporation, CDC Software Holdings, Inc. and
Ross Systems, Inc.
4
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT, dated as of October 3, 2003 (this "Amendment"), to the
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Agreement and Plan of Merger, dated as of September 4, 2003 (the "Merger
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Agreement"), by and among CHINADOTCOM CORPORATION, a company organized under the
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laws of the Cayman Islands ("Parent"), CDC SOFTWARE HOLDINGS, INC., a Delaware
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corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and ROSS
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SYSTEMS, INC., a Delaware corporation (the "Company"). Capitalized terms used
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but not defined herein have the meanings assigned to such terms in the Merger
Agreement.
Pursuant to the terms of the Merger Agreement and in accordance with
Section 9.04 thereof, the parties hereto agree to amend the Merger Agreement as
follows:
Section 1 Amendment to Section 1.02. Section 1.02 of the Merger Agreement
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is amended by deleting the term "Tax Opinion" and the corresponding section
reference.
Section 2 Amendment to Article II.
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(a) Section 2.01 of the Merger Agreement is amended by deleting the phrase
"and Section 7.16(b)".
(b) Section 2.03 of the Merger Agreement is amended by deleting the first
sentence of Section 2.03 in its entirety and replacing such sentence with the
following:
"At the Effective Time, the separate corporate existence of Merger Sub
shall cease, the Company shall continue as the surviving corporation in the
Merger (the "Surviving Corporation"), and the effect of the Merger shall be
as provided in the applicable provisions of Delaware Law."
Section 3 Amendment to Section 7.16. Section 7.16 of the Merger Agreement
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is amended by deleting the section in its entirety and replacing such section
with the phrase "Intentionally Omitted."
Section 4 Full Force and Effect. Except as expressly amended hereby, the
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Merger Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof.
Section 5 Governing Law. This Amendment shall be governed by, and construed
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in accordance with, the Laws of the State of Delaware applicable to Contracts
executed in and to be performed in that State.
Section 6 Counterparts. This Amendment may be executed and delivered
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(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Amendment to be executed as of the date first written above by their respective
officers thereunto duly authorized.
CHINADOTCOM CORPORATION
By: /s/ Daniel Widdicombe
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Name: Daniel Widdicombe
Title: Chief Financial Officer
CDC SOFTWARE HOLDINGS, INC.
By: /s/ Daniel Widdicombe
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Name: Daniel Widdicombe
Title: Chief Financial Officer
ROSS SYSTEMS, INC.
By: /s/ Robert Webster
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Name: Robert Webster
Title: Executive Vice President