As filed with the Securities and Exchange Commission on October 29, 1999
Registration No.333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BARRISTER INFORMATION SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 16-1176561
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(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
465 MAIN STREET, BUFFALO, NEW YORK 14203 (716) 845-5010
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(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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1999 STOCK INCENTIVE PLAN
(Full title of the plan)
-----------------------
Mark C. Donadio, Esq.
Secretary and General Counsel
Barrister Information Systems Corporation
465 Main Street
Buffalo, New York 14203
(716) 845-5010
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
Calculation of Registration Fee
-------------------------------
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registred(1) registered (1) offering price per aggregate offering registration fee
share(2) price(2)
- ---------------------- -------------- ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par 600,000 Shares $1.625 - $1.66 $987,500 $274.53
value $.24 per share
====================== ============== ================== ================== ================
</TABLE>
(1) Pursuant to Rule 416(c), this Registration Statement covers an
indeterminate amount of common stock as may become issuable pursuant to the
anti-dilution provisions of the Stock Incentive Plan ("Plan") .
(2) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee based on the average of the high and low trading prices
for the Common Stock on the American Stock Exchange on October 28, 1999 for
400,000 shares. The remaining 200,000 shares are issuable upon the exercise
of outstanding options at an exercise price of $1.625 per share. These
options have been granted pursuant to the Plan, but are not yet
exercisable.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent or
given to Plan participants as specified by Rule 428(b)(1) under the Securities
Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Barrister Information Systems Corporation (the "Company") hereby
incorporates by reference into this Registration Statement the following
documents:
(a) The Company's Annual Report on Form 10-K for the year ended March 31,
1999;
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
since the end of the fiscal year covered by the Annual Report referred to in (a)
above, including the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999; and
(c) The description of the Company's common stock contained in the
Registration Statement on Form 8-A, dated December 10, 1985 filed under Section
12 of the Exchange Act, including any amendments or reports filed for the
purpose of updating such description.
(d) In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that the securities offered hereby
have been sold or which deregisters the securities offered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing from the date of
filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Mark C. Donadio, Esq., whose opinion appears as an exhibit to this
Registration Statement, serves as the Company's Secretary and General
Counsel.
Item 6. Indemnification of Directors and Officers
The Company's By-laws require the Company to indemnify and advance the
expenses of, any director, officer or employee to the fullest extent permitted
from time to time by the General Corporation Law of the State of Delaware
("GCL"). The Company's By-laws also provide that indemnification under the
By-laws shall not be exclusive of other rights of indemnification of such
persons when authorized by a resolution of shareholders, a resolution of
directors, or an agreement providing for indemnification.
The Company's Certificate of Incorporation limits the personal liability of
the Company's directors to the Company or any of its shareholders for any breach
of duty as a director to the fullest extent permitted by the GCL.
Section 145 of the GCL permits Delaware corporations, acting through their
board of directors, to extend broad protection to their directors, officers, and
other employees by way of indemnity and advancement of expenses. As permitted by
the GCL and as authorized by the shareholders, the Company's Certificate of
Incorporation provides that its directors will not be liable to the corporation
or its shareholders for monetary damages for breach of fiduciary duty as a
director unless a judgment or other final disposition adverse to the director
establishes that (1) such director's actions constituted a breach of the duty of
loyalty to the Company or its stockholders; (2) such director's acts or
omissions were in bad faith or involved intentional misconduct or knowing
violation of law; or (3) such director derived an improper personal benefit; or
(4) the acts of such director violated Section 174 of the GCL (governing
distributions to shareholders). Section 174 provides that, unless a director
performs the duties of a director in good faith, and in the manner he or she
believed to be in or not opposed to the Company's best interest and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful, the director may be liable for voting or concurring in
the following corporate actions; (a) the declaration of an illegal dividend; and
(b) a corporation's repurchase of its own shares when the repurchase is not
authorized by Delaware law. Section 145 of the GCL permits the purchase of
insurance to indemnify a corporation or its officers and directors to the extent
permitted. Generally, the GCL allows corporations to provide for indemnification
of directors, officers, and employees except in those cases where a judgment or
other final adjudication adverse to the indemnified party establishes the items
set forth in (1) through (4) above. The Company has also purchased insurance for
its directors and officers for certain losses arising from claims or charges
made against them in their capacities as directors and officers of the Company.
Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by the Company in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it is ultimately determined that he or she is not entitled to be indemnified by
the Company as authorized by the Company's By-Laws. Such expenses incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the Company's Board of Directors deems appropriate.
The indemnification and advancement of expenses provided by, or granted
pursuant to, Article IV of the Company's By-Laws is not deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any By-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
4.1 1999 Stock Incentive Plan (filed as of July 17,
1999 as Annex B to the Company's Proxy
Statement on Schedule 14A and incorporated
herein by reference)
5.1 Opinion of Mark C. Donadio, Esq.
24.1 Consent of KPMG LLP
24.2 Consent of Mark C. Donadio, Esq. (included in
Exhibit 5.1)
<PAGE>
Item 9. Undertakings
A. The Company 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 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; and
(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 this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above 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 Company pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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 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 Company hereby undertakes that, for purposes of determining any
liability under the Exchange Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer of controlling person of the Company 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 Company 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 is against public policy
as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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 Buffalo, State of New York, on the 29th day of October, 1999.
BARRISTER INFORMATION SYSTEMS CORPORATION
BY: /s/ Richard P. Beyer
--------------------------------------
Richard P. Beyer,
Vice-President and
Chief Financial Officer
Pursuant to the requirements of the 1933 Act, as amended, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Henry P. Semmelhack President, Chief Executive Officer October 29, 1999
- --------------------------- and Chairman of the Board of
Henry P. Semmelhack Directors (Principal Executive Officer)
/s/ Richard P. Beyer Vice President, Chief Financial Officer October 29, 1999
- --------------------------- and Director (Principal Financial and
Richard P. Beyer Accounting Officer)
- --------------------------- Director October __, 1999
Franklyn S. Barry, Jr.
- --------------------------- Director October __, 1999
Warren E. Emblidge, Jr.
/s/ Richard E. McPherson
- --------------------------- Director October 29, 1999
Richard E. McPherson
/s/ Jay S. Moeller
- --------------------------- Director October 29, 1999
Jay S. Moeller
/s/ James D. Morgan
- --------------------------- Director October 29, 1999
James D. Morgan
</TABLE>
<PAGE>
EXHIBIT INDEX
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<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION PAGE NO.
- -------------- ----------- --------
<S> <C> <C>
4.1 1999 Stock Incentive Plan (filed as of July 17, 1999
as Annex B to the Company's Proxy Statement on
Schedule 14A and incorporated herein by reference.)
5.1 Opinion of Mark C. Donadio, Esq.
24.1 Consent of KPMG LLP
24.2 Consent of Mark C. Donadio, Esq.
(included in Exhibit 5.1)
</TABLE>
EXHIBIT 5.1
October 29, 1999
Barrister Information Systems Corporation
465 Main Street, Suite 700
Buffalo, New York 14203-1788
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am delivering this opinion at your request in connection with the
registration by Barrister Information Systems Corporation (the "Company") under
the Securities Act of 1933, as amended, and the Rules and Regulations therunder
(the "Act"), of 600,000 shares of the Company's Common Stock, par value $.24 per
share (the "Shares"), for issuance and sale by the Company pursuant to the
above-referenced registration statement (the "Registration Statement") under the
Company's 1999 Stock Incentive Plan (the "Plan").
The opinion set forth in this letter is based upon (1) my review of (a) the
Registration Statement, (b) the Plan, (c) originals, or copies authenticated to
my satisfaction, of the Company's Certificate of Incorporation, as amended, its
By-laws, as amended, and records of certain of its corporate proceedings and (d)
such other certificates, opinions and instruments as I have deemed necessary and
(2) my review of such published sources of law as I have deemed necessary. I
have assumed that when the Shares are sold, appropriate certificates complying
with applicable law evidencing the Shares will be properly executed.
Based upon the foregoing, it is my opinion that the Shares have been duly
authorized, and when the Shares are issued and paid for as contemplated by the
Plan, will be validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Mark C. Donadio
--------------------------
Mark C. Donadio
Secretary and General Counsel
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Barrister Information Systems Corporation:
We consent to incorporation by reference in this registration statement filed on
Form S-8 by Barrister Information Systems Corporation of our reports dated June
28, 1999 relating to the balance sheets of Barrister Information Systems
Corporation as of March 31, 1999 and 1998, and the related statements of
operations, shareholders' equity and cash flows for each of the years in the
three-year period ended March 31, 1999, and the related schedule which reports
appear in the March 31, 1999 annual report on Form 10-K of Barrister Information
Systems Corporation.
/s/ KPMG LLP
October 25, 1999
Buffalo, New York
