As filed with the Securities and Exchange Commission on April 18, 1997
Registration No. 33-56868
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
__________________________________
CERNER CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 43-1196944
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2800 ROCKCREEK PARKWAY, SUITE 601, KANSAS CITY, MISSOURI 64117
(Address of Principal Executive Offices) (Zip Code)
CERNER CORPORATION
ASSOCIATE 401(k) RETIREMENT PLAN
(Formerly known as Cerner Corporation
Employee Stock Purchase Retirement Plan)
(Full title of the plan)
CLIFFORD W. ILLIG, 2800 ROCKCREEK PARKWAY, SUITE 601, KANSAS
CITY, MISSOURI 64117
(Name and address of agent for service)
(816) 221-1024
(Telephone number, including area code, of agent for service)
PLEASE SEND COPIES OF ALL CORRESPONDENCE TO:
JAMES W. ALLEN, ESQ.
STINSON, MAG & FIZZELL, P.C.
1201 WALNUT STREET
KANSAS CITY, MISSOURI 64106
(816) 842-8600
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 2 amends Registration
on Form S-8 No. 33-56868 (the "Registration Statement"), in
accordance with Rule 416 promulgated under the Securities Act of
1933, as amended (the "Securities Act"), to reflect an increase
in the number of shares of Common Stock, $.01 par value per share
(the "Common Stock"), of Cerner Corporation (the "Company"),
covered by such Registration Statement as a result of a 100%
stock dividend (the "1995 Stock Dividend") paid on August 4, 1995
to holders of record of shares of Common Stock on July 24, 1995.
While the initial filing of the Registration Statement with the
Securities and Exchange Commission covered 200,000 shares of
Common Stock and an indeterminate amount of interests to be
offered or sold pursuant to the Cerner Corporation Associate
401(k) Retirement Plan, Post-Effective Amendment No. 1 to the
Registration Statement increased the number of shares of Common
Stock covered by the Registration Statement to 400,000 as a
result of a prior stock dividend (the "1993 Stock Dividend"). No
shares of Common Stock covered by the Registration Statement were
distributed before the 1993 Stock Dividend as a result of
distributions under the Cerner Corporation Associate 401(k)
Retirement Plan. As of August 4, 1995, no shares of Common
Stock covered by the Registration Statement had been distributed
as a result of distributions under the Cerner Corporation
Associate 401(k) Plan. This means all 400,000 shares of Common
Stock had not been distributed as of August 4, 1995, and this
Post-Effective Amendment No. 2 increases the number of shares of
Common Stock remaining covered by the Registration Statement to
800,000 as a result of the 1995 Stock Dividend.
The provisions of Rule 416 shall apply to this
Registration Statement and the number of shares registered on
this Registration Statement automatically shall increase or
decrease as a result of future stock splits, stock dividends or
similar transactions.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with
the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") are incorporated herein
by reference: (i) the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1996; and (ii) the description of the
Common Stock of the Registrant which is contained in the Registrant's
Registration Statement on Form 8-A (File No. 0-15386), including any
amendments or reports filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters
all securities offered hereby 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, except
in no event shall any information included in any such document
in response to Item 402(i), (k) or (l) of Regulation S-K be
deemed to constitute part of this Registration Statement.
Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
in any subsequently filed document which is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Common Stock of the
Registrant registered pursuant to this Registration Statement
will be passed upon by Stinson, Mag & Fizzell, P.C., 1201 Walnut
Street, Kansas City, Missouri 64106. As of March 31, 1997,
attorneys of such law firm owned in the aggregate 49,592 shares
of Common Stock of the Registrant.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 145 of the Delaware General Corporation Law
(the "DGCL") (i) gives Delaware corporations broad powers to
indemnify their present and former directors and officers and
those of other enterprises, as well as certain other persons,
against expenses, judgments, fines and settlement amounts
incurred by such directors, officers or other persons in defense
of any action, suit or proceeding to which they are made parties
by reason of being or having been a director, officer, employee
or agent of the corporation, or of another enterprise at the
request of the corporation, subject to specified conditions and
exclusions, (ii) gives such directors, officers or other persons
who are successful in the defense of any action, suit or
proceeding the right to be indemnified, and (iii) authorizes the
corporation to purchase and maintain directors' and officers'
liability insurance. The indemnification authorized by Section
145 of the DGCL is not exclusive of any other rights to which
those indemnified may be entitled under any bylaws, agreement,
vote of stockholders or disinterested directors, policy of
insurance or otherwise.
(b) Article Tenth of the Registrant's Restated Certificate
of Incorporation authorizes the Registrant to agree to indemnify
any of its directors, officers, employees or agents, and any
person who serves at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, to the fullest extent
permitted by the laws of the state of Delaware; provided that the
Registrant is not permitted to indemnify any person from or on
account of such person's conduct which was finally adjudged to
have been knowingly fraudulent, deliberately dishonest or wilful
misconduct.
(c) In accordance with Section 102(b)(7) of the DGCL,
Article Tenth of the Registrant's Restated Certificate of
Incorporation contains a provision eliminating a director's
personal liability to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director to
the fullest extent permitted or authorized by the laws of the
state of Delaware. Section 102(b)(7) of the DGCL prohibits the
elimination or limitation of a director's liability (1) for any
breach of the director's duty of loyalty to the Registrant or its
stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violations of
law, (3) under Section 174 of the DGCL (relating to unlawful
dividend payments or stock redemptions or repurchases), or (4)
for any transaction from which the director derived an improper
personal benefit.
(d) Section 28 of the Registrant's Bylaws requires the
Registrant to indemnify any person (1) against all liabilities
and expenses actually and reasonably incurred by such person in
connection with any action, suit or proceeding (other than an
action by or in the right of the Registrant) or (2) against any
amounts paid in settlement and expenses actually and reasonably
incurred by such person in an action by or in the right of the
Registrant, in either case, by reason of the fact that such
person is or was serving as a director or officer of the
Registrant or as a director or officer of another enterprise at
the Registrant's request; provided that (a) such person must have
acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the Registrant's best
interests and, with respect to any criminal action or proceeding,
that such person must have had no reasonable cause to believe
such person's conduct was unlawful, and (b) the Registrant is not
required to indemnify or advance expenses to such person in
connection with an action, suit or proceeding initiated by such
person unless the initiation of such action, suit or proceeding
was authorized by the Registrant's Board of Directors. Said
Section 28 further provides that the Registrant shall not
indemnify any person for any liabilities or expenses incurred by
such person in connection with an action, suit or proceeding by
or in the right of the Registrant in respect of any claim, issue
or matter <PAGE> as to which such person shall have been adjudged to be
liable to the Registrant, unless and only to the extent that the
court in which the action, suit or proceeding is brought
determines that the person is entitled to such indemnity. If any
person serving as a director or officer of the Registrant or as a
director or officer of another enterprise at the Registrant's
request is successful on the merits or otherwise in defense of
any action, suit or proceeding referred to above, said Section 28
requires that the Registrant indemnify such person against
expenses actually and reasonably incurred by such person in
connection therewith. Prior to indemnifying a person pursuant to
Section 28 of the Registrant's Bylaws, the Registrant must
determine that such person has met the specified standard of
conduct required for indemnification unless ordered by a court
and except as otherwise provided by the immediately preceding
sentence. Such determination must be made by (y) a majority vote
of a quorum of the directors who were not party to the action,
suit or proceeding (or by independent legal counsel in a written
opinion if so directed by a quorum of disinterested directors or
if such a quorum is not obtainable), or (z) the stockholders. If
the determination is adverse to the person seeking to be
indemnified, such person may cause the determination to be made
by a court having jurisdiction over the Registrant. The
indemnification provided by Section 28 of the Registrant's Bylaws
is not exclusive of any other rights to which those seeking
indemnification may be entitled under any statute, the
Registrant's Restated Certificate of Incorporation, the
Registrant's Bylaws, any agreement, vote of stockholders or
disinterested directors, policy of insurance or otherwise, both
as to action in their official capacities and as to action in
other capacities while holding their respective offices.
(e) The Registrant has entered into indemnification
agreements with the Registrant's directors, Clifford W. Illig,
Neal L. Patterson, Michael E. Herman, Thomas A. McDonnell, Gerald
E. Bisbee, Jr., Thomas C. Tinstman, M.D. and John C. Danforth,
which, among other things, (a) confirm the present indemnity
permitted under the DGCL, (b) provide that, in addition, the
directors shall be indemnified to the fullest possible extent
permitted by law against all expenses (including attorneys'
fees), judgments, fines, and settlement amounts, paid or incurred
by them in any action or proceeding, including any action by or
in the right of the Registrant, on account of their services as a
director of the Registrant or as a director of any subsidiary of
the Registrant or as a director, officer, employee or agent of
any other company or enterprise when they are serving in such
capacities at the request of the Registrant, and (c) provide
procedures for notification and defense of a claim. However, no
indemnity will be provided to any director on account of conduct
which is adjudged to be knowingly fraudulent, deliberately
dishonest or wilful misconduct. The indemnification agreements
also provide that the Registrant will advance the expenses of
defending an action, lawsuit or other proceeding to the
indemnified director before the matter is disposed of if the
indemnitee agrees to repay any such advances to the Registrant if
it is later determined that he or she was not entitled to
indemnification.
(f) Section 28 of the Registrant's Bylaws permits the
Registrant to insure any person against any liability incurred by
such person by reason of the fact that such person is or was
serving as a director or officer of the Registrant or as a
director or officer of another enterprise at the Registrant's
request, whether or not the Registrant would have the power to
indemnify such person under the provisions described above. The
Registrant has obtained directors' and officers' liability
insurance for each of its directors and executive officers which
(subject to certain limits and deductibles) (i) insures such
persons against loss arising from certain claims made against
them by reason of such persons being a director or officer, and
(ii) insures the Registrant against loss which it may be required
or permitted to pay as indemnification due such persons for
certain claims. Such insurance may provide coverage for certain
matters as to which the Registrant may not be permitted by law to
provide indemnification.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
A list of the exhibits included as part of this
Registration Statement is set forth in the Exhibit Index which
immediately precedes such exhibits and is incorporated by
reference herein.
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 this
Registration Statement (or the most recent post-
effective amendment thereto) 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 (1)(i) and (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 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 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 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 <PAGE>
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, 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 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Kansas City, State of Missouri, on March 7, 1997.
CERNER CORPORATION
By: /s/ Clifford W. Illig
Clifford W. Illig
President
Pursuant to the requirements of the Securities Act,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Neal L. Patterson
Neal L. Patterson Chairman of the Board March 7, 1997
and Director (Principal
Executive Officer)
/s/ Clifford W. Illig
Clifford W. Illig President and Director March 7, 1997
/s/ Marc G. Naughton
Marc G. Naughton (Principal Financial and March 7, 1997
Accounting Officer)
/s/ Gerald E. Bisbee, Jr.
Gerald E. Bisbee, Jr. Director March 7, 1997
/s/ Michael E. Herman
Michael E. Herman Director March 7, 1997
/s/ Thomas C. Tinstman, M.D.
Thomas C. Tinstman, M.D. Director March 7, 1997
/s/ Thomas A. McDonnell
Thomas A. McDonnell Director March 7, 1997
/s/ John C. Danforth
John C. Danforth Director March 7, 1997
<PAGE>
EXHIBIT INDEX
Page
Number Description No.
4(a) Restated Certificate of Incorporation, as *
amended through June 30, 1996 (filed as Exhibit
3(a) to Registrant's Quarterly Report on Form
10-Q for the quarter ended June 30, 1996, and
incorporated herein by reference).
4(b) Bylaws of Registrant, as amended (filed as *
Exhibit 3 to Registrant's Quarterly Report on
Form 10-Q for the quarter ended July 1, 1995,
and incorporated herein by reference).
4(c) Specimen stock certificate (filed as Exhibit *
4(a) to Registrant's Registration Statement on
Form S-8 (File No. 33-15156) and incorporated
herein by reference).
4(d) Note Agreement between Cerner Corporation, *
Principal Mutual Life Insurance Company, and
Principal National Life Insurance Company dated
July 1, 1994 (filed as Exhibit 10(a) to
Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1994, and
incorporated herein by reference).
4(e) Credit Agreement between Cerner Corporation, *
Cerner Properties, Inc., Mark Twain Kansas
Bank and Harris Trust & Savings Bank dated
April 18, 1994 (filed as Exhibit 10(b) to
Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1994, and
incorporated herein by reference).
4(f) Cerner Corporation Amended and Restated *
Associate 401(k) Retirement Plan (filed as
Exhibit 4(c)(iii) to Registrant's Post-
Effective Amendment No. 3 to Registration
Statement No. 33-20155 and incorporated herein
by reference).
5(a) Opinion of Stinson, Mag & Fizzell, P.C.,
Counsel for the Registrant, with respect
to the legality of the Common Stock of the
Registrant registered hereby.
5(b) Undertaking of the Registrant to submit the
Registrant's Associate 401(k) Retirement Plan
and Trust (Amended and Restated Effective
November 1, 1990) (the "Plan") and any amendments
thereto to the Internal Revenue Service (the
"IRS") in a timely manner and will make all
changes required by the IRS in order to qualify
the Plan.
23(a) Consent of Registrant's Independent Accountants.
<PAGE>
23(b) Consent of Registrant's Counsel (contained in *
the Opinion of Counsel filed as Exhibit 5(a)).
____________________
* Incorporated herein by reference.
Exhibit 5(a)
March 31, 1997
Cerner Corporation
2800 Rockcreek Parkway
Suite 601
Kansas City, Missouri 64117
Ladies and Gentlemen:
We refer to Post-Effective Amendment No. 2 to the
Registration Statement on Form S-8 No. 33-56868 (the
"Registration Statement") of Cerner Corporation, a Delaware
corporation (the "Company"), to be filed with the Securities and
Exchange Commission on or about April 18, 1997 for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), 400,000 shares of Common Stock, par value $.01
per share ("Common Stock"), of the Company. These shares of
Common Stock are proposed to be issued pursuant to the Cerner
Corporation Associate 401(k) Retirement Plan (the "Plan"), and
are being added to the shares of Common Stock covered by the
Registration Statement pursuant to Rule 416 promulgated under the
Securities Act as a result of a recent 100% stock dividend with
respect to the Common Stock.
We have examined the Restated Certificate of
Incorporation, as amended, the Bylaws of the Company, as
currently in effect, minutes of the applicable meetings of the
Board of Directors and stockholders of the Company, together with
such other corporate records, certificates of public officials
and other documents as we have deemed relevant to this opinion.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized,
validly existing and in good standing under the laws of
the State of Delaware.
2. All necessary corporate action has been taken
to authorize the issuance of the aforesaid 400,000
shares of Common Stock and all such shares of Common
Stock as shall be issued and paid for as described in
the Plans shall be, when so issued, legally issued,
fully paid and nonassessable.
<PAGE>
We hereby consent to the reference to our firm under
the heading "Interests of Named Experts and Counsel" in the
Registration Statement. We also consent to the inclusion of this
opinion in the Registration Statement as an exhibit thereto.
Very truly yours,
/s/ Stinson, Mag & Fizzell, P.C.
STINSON, MAG & FIZZELL, P.C.
Exhibit 5(b)
Cerner Corporation has submitted, or hereby undertakes to submit,
the Cerner Corporation Associate 401(k) Plan (the "Plan") and all
amendments thereto to the Internal Revenue Service (the "IRS") in
a timely manner, and has made or will cause to be made all
changes required by the IRS in order to qualify the Plan.
CERNER CORPORATION
By: /s/ Marc G. Naughton
Name: Marc G. Naughton
Title: V.P. and CFO
Exhibit 23(a)
The Board of Directors
Cerner Corporation
We consent to the incorporation by reference in the
Registration Statements on Form S-8 (Nos. 33-15156, 33-39776,
33-41580, 33-63226, 33-55082, 33-39777, 33-56868, and 33-20155)
of Cerner Corporation of our reports dated February 7, 1997,
relating to the consolidated balance sheets of Cerner Corporation
as of December 28, 1996 and December 30, 1995, and the related
consolidated statements of earnings, stockholders' equity, and
cash flows and related schedule for each of the years in the
three-year period ended December 28, 1996, which reports appear
in the 1996 annual report on Form 10-K of Cerner Corporation and
are incorporated herein by reference. We also consent to the reference
to our firm in such Registration Statements.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Kansas City, Missouri
April 10, 1997
