<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 9, 2000
REGISTRATION NO. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
OPTIO SOFTWARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1435435
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
3015 WINDWARD PLAZA
WINDWARD FAIRWAYS II
ALPHARETTA, GEORGIA 30005
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
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OPTIO SOFTWARE, INC. STOCK INCENTIVE PLAN
OPTIO SOFTWARE, INC. DIRECTORS' STOCK OPTION PLAN
AND OTHER STOCK OPTIONS
(FULL TITLE OF THE PLANS)
------------------------------
C. WAYNE CAPE COPY TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER WARD S. BONDURANT, ESQ.
OPTIO SOFTWARE, INC. MORRIS, MANNING & MARTIN, L.L.P.
3015 WINDWARD PLAZA 1600 ATLANTA FINANCIAL CENTER
WINDWARD FAIRWAYS II 3343 PEACHTREE ROAD, N.E.
ALPHARETTA, GEORGIA 30005 ATLANTA, GEORGIA 30326
(770) 576-3500 (404) 233-7000
(NAME AND ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
AGENT FOR SERVICE.)
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) Per Share Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock Issuable under Stock Incentive Plan 6,164,908 $2.79(2) $17,200,093 $4,540.82
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Common Stock Issuable under Stock Incentive Plan 6,335,092 $6.625(3) $41,969,985 11,080.08
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Common Stock Issuable under Directors' Stock Option Plan 30,000 $10.00(2) $300,000 79.20
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Common Stock Issuable under Directors' Stock Option Plan 270,000 $6.625(3) $1,788,750 472.23
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Common Stock Issuable outside Plans 3,917,500 $0.32(2) $1,253,600 330.95
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TOTAL 16,717,500 $16,503.28
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(1) An undetermined number of additional shares are hereby registered and
may be issued, or the shares registered hereunder may be combined into
an undetermined lesser number of shares, pursuant to the adjustment
provisions of the Plans.
(2) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. Computation based on the weighted
average per share price (rounded to the nearest cent) of options
granted under the referenced plan or outside, the shares issuable under
which are registered hereby.
(3) Computed in accordance with Rule 457(c) based on the high and low
prices of the common stock offered hereby on The Nasdaq National Market
on June 2, 2000. Represents shares reserved for options not yet
granted.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees, key persons and non-employee directors of Optio
Software, Inc. (the "Company") as specified by Rule 428(b)(1) of the Securities
Act of 1933, as amended (the "Securities Act"). In accordance with the
instructions of Part I of Form S-8, these documents will not be filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. These documents and the documents incorporated
by reference pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute the prospectus as required by Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated
herein by reference:
(a) Annual Report on Form 10-K filed April 28, 2000 for the year ended
January 31, 2000;
(b) Proxy Statement for the 2000 Annual Meeting of Stockholders,
filed May 26, 2000;
(c) Current Report on Form 8-K, filed April 10, 2000; and
(d) the description of the Company's common stock, no par value per
share ("Common Stock") contained in the Company's Registration Statement on Form
8-A, filed with the Commission on December 9, 1999 (Registration No. 001-15529).
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14, or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the termination of the offering of the shares of Common
Stock offered hereby shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof.
The Company hereby undertakes to provide without charge to each person
to whom this Prospectus has been delivered, upon the written or oral request of
any such person, a copy of any and all of the foregoing documents incorporated
herein by reference (other than exhibits to such documents which are not
specifically incorporated by reference into the information that this Prospectus
incorporates). Written or telephone requests should be directed to Barron
Hughes, Optio Software, Inc., 3015 Windward Plaza, Windward Fairways II,
Alpharetta, Georgia 30005; (770) 576-3500.
ITEM 4. DESCRIPTION OF SECURITIES.
Because the securities to be awarded pursuant to this registration
statement are registered under Section 12 of the Securities Exchange Act of
1934, this item is inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock were passed
upon by Morris, Manning & Martin, L.L.P., Atlanta, Georgia.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Articles of Incorporation provide
that the liability of the Company's directors for monetary damages shall be
eliminated to the fullest extent permissible under the Georgia Business
Corporation Code (the "GBCC") and that the Company may indemnify its officers,
employees and agents to the fullest extent permitted under the GBCC.
The Company's Amended and Restated Bylaws provide that the Company must
indemnify its directors against all liabilities to the fullest extent permitted
under the GBCC and that it must advance all reasonable expenses incurred in a
proceeding in which the director was either a party or a witness because he or
she was a director.
<PAGE>
The GBCC provides that, in general, a corporation may indemnify an
individual who is or was a party to any proceeding (other than action by, or in
the right of, such corporation) by reason of the fact that he or she is or was a
director of the corporation, against liability incurred in connection with such
proceeding, including any appeal thereof, provided certain standards are met,
including that such officer or director acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation, and provided further that, with respect to any criminal action
or proceeding, the officer or director had no reasonable cause to believe his or
her conduct was unlawful. In the case of proceedings by or in the right of the
corporation, the GBCC provides that, in general, a company may indemnify an
individual who was or is a party to any such proceeding by reason of the fact
that he or she is or was a director of the corporation against reasonable
expenses incurred in connection with such proceeding, if it is determined that
the director has met the relevant standard of conduct. To the extent that any
directors are successful on the merits or in the defense of any of the
proceedings described above, the GBCC provides that a corporation is required to
indemnify such officers or directors against reasonable expenses incurred in
connection therewith. The GBCC further provides, in general, for the advancement
of reasonable expenses incurred by a director who is a party to a proceeding if
the director furnishes the corporation (1) a written affirmation of his good
faith belief that he or she has met the standard of conduct under the GBCC or
that the proceeding involves conduct for which liability has been eliminated
under the corporation's articles of incorporation; and (2) a written undertaking
to repay any advances if it is ultimately determined that he or she is not
entitled to indemnification. In addition, the GBCC provides for the
indemnification of officers, employees and agents in certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
As no restricted securities are to be reoffered or resold pursuant to
this Registration Statement, this item is inapplicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
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Exhibit No. Description
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<S> <C>
3.1 The Company's Amended and Restated Articles of
Incorporation (incorporated by reference to Exhibit 3.1
to the Company's Registration Statement on Form S-1,
filed with the Commission on October 15, 1999,
Registration Number 333-89181).
3.2 The Company's Amended and Restated Bylaws (incorporated
by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1, filed with the
Commission on October 15, 1999, Registration Number
333-89181).
5.1 Opinion of Morris, Manning & Martin, L.L.P., as to the
legality of the securities being registered.
10.1 Optio Software, Inc. Stock Incentive Plan (incorporated
by reference to Exhibit 10.1 to the Company's
Registration Statement on Form S-1, filed with the
Commission on October 15, 1999, Registration Number
333-89181).
10.2 Optio Software, Inc. Directors' Stock Option Plan
(incorporated by reference to Exhibit 10.2 to the
Company's Registration Statement on Form S-1, filed with
the Commission on October 15, 1999, Registration Number
333-89181).
10.3 Form of Option Grant Agreement prior to adoption of the
Optio Software, Inc. Stock Incentive Plan
23.1 Consent of Ernst & Young LLP
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23.2 Consent of Morris, Manning & Martin, L.L.P. (included in
Exhibit 5.1).
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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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in the Registration Statement or any material
change to such information in the Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the undersigned 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 Alpharetta, State of Georgia, on this the 9th day of
June, 2000.
OPTIO SOFTWARE, INC.
By: /s/ C. Wayne Cape
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C. Wayne Cape
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated:
/s/ C. Wayne Cape President, Chief Executive Officer June 9, 2000
-------------------------- and Director (Principal Executive
C. Wayne Cape Officer)
/s/ F. Barron Hughes Chief Financial Officer, Secretary June 9, 2000
-------------------------- and Treasurer (Principal Financial
F. Barron Hughes and Accounting Officer)
/s/ David Dunn-Rankin Director June 9, 2000
-------------------------
David Dunn-Rankin
/s/ Mitchel J. Laskey Director June 9, 2000
-------------------------
Mitchel J. Laskey
<PAGE>
EXHIBIT INDEX
EXHIBITS INCORPORATED HEREIN BY REFERENCE
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Designation of Exhibit. Description of Exhibit
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<S> <C>
3.1 The Company's Amended and Restated Articles of
Incorporation (incorporated by reference to Exhibit
3.1 to the Company's Registration Statement on Form
S-1, filed with the Commission on October 15, 1999,
Registration Number 333-89181).
3.2 The Company's Amended and Restated Bylaws
(incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1, filed
with the Commission on October 15, 1999,
Registration Number 333-89181).
10.1 Optio Software, Inc. Stock Incentive Plan
(incorporated by reference to Exhibit 10.1 to the
Company's Registration Statement on Form S-1, filed
with the Commission on October 15, 1999,
Registration Number 333-89181).
10.2 Optio Software, Inc. Directors' Stock Option Plan
(incorporated by reference to Exhibit 10.2 to the
Company's Registration Statement on Form S-1, filed
with the Commission on October 15, 1999,
Registration Number 333-89181).
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EXHIBITS FILED HEREWITH
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Designation of Exhibit. Description of Exhibit
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<S> <C>
5.1 Opinion of Morris, Manning & Martin, L.L.P., as to
the legality of the securities being registered.
10.3 Form of Option Grant Agreement prior to adoption of
the Optio Software, Inc. Stock Incentive Plan
23.1 Consent of Ernst & Young LLP
23.2 Consent of Morris, Manning & Martin, L.L.P.
(included in Exhibit 5.1).
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