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As filed with the Securities and Exchange Commission on February 10, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE REYNOLDS AND REYNOLDS COMPANY
(Exact name of registrant as specified in its charter)
OHIO 31-0421120
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
115 SOUTH LUDLOW STREET, DAYTON, OHIO 45402
(Address of principal executive offices) (Zip code)
THE REYNOLDS AND REYNOLDS COMPANY
NON-EMPLOYEE DIRECTOR STOCK COMPENSATION PLAN
(Full title of the plan)
ADAM M. LUTYNSKI, ESQ.
GENERAL COUNSEL AND SECRETARY
THE REYNOLDS AND REYNOLDS COMPANY
115 SOUTH LUDLOW STREET, DAYTON, OHIO 45402
(Name and address of agent for service)
(937) 485-2000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed maximum Proposed maximum Amount of
Securities to registered offering price aggregate offering registration
be registered per share (1) price(1) fee(2)
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Class A Common
Shares, no par 4,550 $22.19 $100,965 $27.00
value
(1) Pursuant to Rule 457, solely for the purpose of calculating the amount of
the registration fee. The average of the high and low prices reported on
the on the New York Stock Exchange Composite Index on February 7, 2000 was
$22.19.
(2) Pursuant to Rule 457 promulgated under the Securities Act of 1933, the
filing fee was calculated based on the average of the high and low prices
of the Registrant's Class A Common Shares reported on the New York Stock
Exchange Composite Index on February 7, 2000 as reported in THE WALL
STREET JOURNAL.
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PART I
The information specified in Part I of Form S-8 is not required to be
filed with the SEC either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Note 1 to Part I of Form S-8
and Rule 424 under the Securities Act of 1933. The information required in the
Section 10(a) prospectus is included in the documents being maintained and
delivered by The Reynolds and Reynolds Company as required by Part I of Form S-8
and by Rule 428 under the Securities Act.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999.
(b) The Company's Current Report on Form 8-K filed with the Securities and
Exchange Commission on February 9, 2000.
(c)(1) The "Description of Registrant's Securities to be Registered" on page 2
of the Registrant's Amended Registration Statement on Form 8-A/A which
was filed with the Securities and Exchange Commission on October 20,
1998.
(c)(2) The "Description of Registrant's Securities to be Registered" on pages
2 through 6 of the Registrant's Registration Statement on Form 8-A
which became effective on May 8, 1991.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing such documents. Any
Statement contained 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 herein or
in any subsequently filed document which also is or 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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
For purposes of this registration statement, Adam M. Lutynski, Esq.,
General Counsel and Secretary of The Reynolds and Reynolds Company, is giving
his opinion of the validity of the shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 1701.13(E) of the Ohio Revised Code, the Registrant
is permitted to indemnify any director, officer, employee or agent of the
Registrant against costs and expenses incurred in connection with any action,
suit or proceeding brought against any such person by reason of his having
served the Registrant in such capacity, provided that he meets certain "good
faith" tests provided by law, and provided further that, with respect to suits
brought on behalf of the Registrant, he is not adjudged to be liable for
negligence or misconduct unless the relevant court finds indemnification to be
nevertheless appropriate in view of all of the circumstances. The statute also
provides that in the event an officer or director has been successful on the
merits in defense of any such action, suit or proceeding, such officer or
director shall be indemnified by the Registrant against actual and reasonable
expenses in connection therewith.
Article Ninth of the Registrant's Amended Articles of Incorporation
provides that, as more specifically set forth in the Registrant's Consolidated
Code of Regulations, the Registrant may provide to any director, officer, other
employee or agent of the Registrant or any person who serves at the request of
the Registrant as a director, trustee, other employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, the maximum
indemnification permitted under Section 1701.13(E) of the Ohio Revised Code,
including amendments thereto, or any comparable provisions of any future Ohio
statute.
Paragraph B of Section 1 of Article IX of the Registrant's Consolidated
Code of Regulations provides for indemnification of directors, officers, and
employees of the Registrant, and persons who, at the request of the Registrant
act as a director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses actually
and reasonably incurred in connection with any action as to which he was or is
or may be made a party by reason of his acting in such capacity, involving a
matter as to which it shall be determined, as provided therein, that he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Registrant, and, with respect to any criminal matter or
proceeding, in addition, that he had no reasonable cause to believe that his
conduct was unlawful; provided, however, that in the case of an action by or in
the right of the Registrant to procure a judgment in its favor, no such
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged liable for negligence or misconduct
in the performance of his duty to the Registrant unless, and only to the extent
that, the Court of Common Pleas or other court in which such action was brought
shall determine such indemnification to be proper.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
EXHIBIT NO. DOCUMENT
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(4)(a) Specimen Certificate for Class A Common Shares of the
Registrant incorporated by reference to Exhibit 4(a) to
the Registrant's Registration Statement on Form S-3,
No. 333-72639, filed with the Securities and Exchange
Commission on February 19, 1999.
(4)(b) Amended and Restated Articles of Incorporation of the
Registrant, incorporated by reference to Exhibit A to
the Registrant's definitive proxy statement dated
January 5, 1995, and the amendment thereto incorporated
by reference to Exhibit 2 of the Registrant's Form 8A/A
dated October 20, 1998.
(4)(c) Consolidated Code of Regulations of the Registrant,
incorporated by reference to Exhibit B to the
Registrant's definitive proxy statement dated January
8, 1990, and filed with the Securities and Exchange
Commission.
(4)(d) Shareholder Rights Plan incorporated by reference to Exhibit 1 to
the Registrant's Form 8-A which was adopted on May 6, 1991, and
filed with the Securities and Exchange Commission on May 8, 1991.
(4)(e) The Reynolds and Reynolds Company Non-Employee Director Stock
Compensation Plan.*
(5) Opinion of Adam M. Lutynski, General Counsel and Secretary of The
Reynolds and Reynolds Company.*
(23) Consent of Deloitte & Touche LLP, independent auditors.*
(24) Power of Attorney (included on signature page).*
* denotes that the Exhibits are filed 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 of 1933;
(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
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thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement; and
(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 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 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 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 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 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 of 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 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 of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on this Registration Statement 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 Dayton, State of Ohio, on
February 10, 2000.
THE REYNOLDS AND REYNOLDS COMPANY
By:/s/ DAVID R. HOLMES
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David R. Holmes, Chairman of the Board
and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David R. Holmes and Adam M. Lutynski, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all future amendments to this
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and things and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully 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 by the following persons in the
capacities and on the date(s) indicated.
/s/ DAVID R. HOLMES February 10, 2000
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David R. Holmes, Chairman of the Board, Chief Executive
Officer (Principal Executive Officer) and Director
/s/ DALE L. MEDFORD February 10, 2000
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Dale L. Medford, Vice President, Corporate Finance and
Chief Financial Officer (Principal Financial and Accounting
Officer) and Director
/s/ LLOYD G. WATERHOUSE February 10, 2000
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Lloyd G. Waterhouse, President, Chief Operating Officer and
Director
/s/ DAVID E. FRY February 10, 2000
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Dr. David E. Fry, Director
/s/ RICHARD H. GRANT, III February 10, 2000
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Richard H. Grant, III, Director
/s/ JAMES L. ARTHUR February 10, 2000
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James L. Arthur, Director
/s/ ALLAN Z. LOREN February 10, 2000
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Allan Z. Loren, Director
/s/ PHILIP A. ODEEN February 10, 2000
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Philip A. Odeen, Director
/s/ DONALD K. PETERSON February 10, 2000
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Donald K. Peterson, Director
/s/ CLEVE L. KILLINGSWORTH, JR. February 10, 2000
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Cleve L. Killingsworth, Jr., Director
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EXHIBIT 4(e)
THE REYNOLDS AND REYNOLDS COMPANY
NON-EMPLOYEE DIRECTOR STOCK COMPENSATION PLAN
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THE REYNOLDS AND REYNOLDS COMPANY
NON-EMPLOYEE DIRECTOR STOCK COMPENSATION PLAN
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SECTION 1. PURPOSES. The Reynolds and Reynolds Company Non-Employee
Director Stock Compensation Plan is intended to act as an
incentive to contribute to the Company's success by assisting
the Company and its Subsidiaries in attracting and retaining
Non- Employee Directors, and by increasing the stock ownership
among the Non-Employee Directors to further align the
interests of the Non-Employee Directors and the Company's
shareholders.
SECTION 2. DEFINITIONS. Whenever the following terms are used in this
Plan they shall have the meaning specified below, unless the
context otherwise requires.
a. "Board" means the Board of Directors of the Company.
b. "Business Days" means all weekdays except Saturday and Sunday
and those that are official legal holidays of the United
States government on which the national securities exchange
for the Shares is closed for business.
c. "Company" means The Reynolds and Reynolds Company. Unless the
context requires otherwise, the term "Company" shall also
include the Company's Subsidiaries.
d. "Date of Grant" means the date upon which the Board grants a
Share Award.
e. "Director" means a member of the Board.
f. "Disinterested Director" means a Director that is not a Non-
Employee Director.
g. "Fair Market Value" means the average of the "close" selling
price for the Company's Shares as reported on the national
securities exchange of the Shares for the ten (10) Business
Days preceding the date the value of a Share is to be
determined under this Plan. In the event the Shares of the
Company are traded in the over-the-counter market, Fair Market
Value means the average of the "close" quotation in the over-
the-counter market for the Shares for the ten (10) Business
Days preceding the date the value of a Share is to be
determined, as reported by the National Association of
Securities Dealers through NASDAQ.
h. "Grantee" means a Non-Employee Director to whom a Share Award
is granted.
i. "He" and "His" also mean "She" and "Hers."
j. "Majority" means in excess of fifty percent (50%) of the
entire Board, provided, however, that such fifty percent (50%)
shall include at least: (i) in excess of fifty
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percent (50%) of all of the Disinterested Directors, provided,
however, that if the number of Disinterested Directors is less
than three (3), then all of the Disinterested Directors; and
(ii) two Non-Employee Directors.
k. "Non-Employee Director" means each Director of the Company who
is not an employee of the Company or any Subsidiary.
l. "Plan" means The Reynolds and Reynolds Company Non-Employee
Director Stock Compensation Plan, as amended from time to
time.
m. "Share" or "Shares" means the Class A Common Shares of the
Company.
n. "Share Award" means a grant under the Plan of a specified
number of Shares in accordance with the terms of this Plan.
o. "Subsidiary" means any company in which more than 50% of the
voting stock is owned or controlled, directly or indirectly,
by the Company.
SECTION 3. SHARES SUBJECT TO PLAN. The shares of stock subject to the
Plan shall be the Shares. The Board shall determine the number
of Shares which may be issued to each Non- Employee Director
as a Share Award annually at each annual meeting of the
Directors and approve a resolution awarding the Shares to each
Non-Employee Director for that respective year. Shares subject
to the Plan may be, at the discretion of the Board, either
authorized and unissued Shares or Shares acquired by and
belonging to the Company as treasury shares.
SECTION 4. ELIGIBILITY TO RECEIVE A SHARE AWARD. Each Non-Employee
Director shall be granted a Share Award as compensation for
the Non-Employee Director serving as a member of the Board.
SECTION 5. TIMING OF GRANT; NUMBER OF SHARES.
a. TIMING OF GRANT. At each annual meeting of the Directors,
promptly following the election of the Directors, a Majority
of the Board shall approve a resolution awarding a Share Award
to each Non-Employee Director for that respective year.
b. NUMBER OF SHARES. Each Non-Employee Director shall be
granted the number of Shares equal to an aggregate Fair Market
Value of $15,000, rounded to the nearest whole ten Shares. The
$15,000 amount may be adjusted by the Board from time to time,
at its discretion.
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SECTION 6. COMPLIANCE WITH LAWS AND REGULATIONS.
a. LAWS AND REGULATIONS. The Plan and all Shares granted pursuant
to it are subject to all laws and regulations of any
governmental authority which may be applicable thereto; and,
notwithstanding any provisions of this Plan, a Grantee shall
not be entitled to receive nor shall the Company be obligated
to issue any Shares under the Plan to the Grantee if such
issuance shall constitute a violation by the Grantee or the
Company of any provision of any such law or regulation.
b. SECURITIES LAWS AND LISTING RESTRICTIONS. The Company, in its
discretion, may postpone the issuance and delivery of Shares
until completion of any stock exchange listing or Share
registration or other qualification of such Shares under any
state or federal law, rule, or regulation as the Company may
consider appropriate and may require any Grantee to make such
representations and furnish such information as it considers
appropriate in connection with the issuance of the Shares in
compliance with applicable law. Under such circumstances, the
Company shall proceed with reasonable promptness to complete
any such listing, registration or other qualification of the
Shares.
c. LEGENDS. Shares issued and delivered to the Grantee shall be
subject to such restrictions on trading, including appropriate
legending of certificates to that effect as the Company, in
its discretion, shall determine necessary to satisfy
applicable legal requirements and obligations.
d. REPRESENTATIONS OF GRANTEE. Each Grantee shall, at the time
the Share Award is granted, as a condition to such award or
issuance: (i) represent, in form satisfactory to counsel for
the Company, that acquisition of the Shares, shall be for
investment purposes only; (ii) agree, in form satisfactory to
counsel for the Company, that he will not sell, pledge,
assign, hypothecate or otherwise distribute such Shares or any
interest therein unless a registration statement covering such
Shares is in effect under the Securities Act of 1933, as now
or hereafter amended, or unless counsel for the Company has
rendered to the Company an opinion that such sale, pledge,
assignment, hypothecation or other distribution may be carried
out without registration of such Shares under said Act; and
(iii) agree, in form satisfactory to counsel for the Company,
that an appropriate legend may be placed on the stock
certificate or certificates evidencing ownership of Shares
acquired hereunder, which legend shall reflect the
restrictions on disposition contained herein; provided,
however, that the foregoing condition and the representation
and agreements called for thereby with respect to the Shares
shall be inoperative and shall expire in the event that
either: (A) the Shares are registered under the Securities Act
of 1933, as now or hereafter amended, or (B) in the opinion of
counsel for the Company, such condition, representation, and
agreements are not necessary under said Act or any rule or
regulation promulgated pursuant thereto.
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SECTION 7. RESERVATION OF SHARES. The Company, during the term of this
Plan, will at all times, consistent with Section 3, reserve
and keep available such number of Shares as, in the judgment
of the Board, shall be sufficient to satisfy the requirements
of the Plan.
SECTION 8. DISCLAIMER OF LIABILITY. Inability of the Company to obtain
from any regulatory body the authority deemed by the Company's
counsel to be necessary to the lawful issuance of any Shares
thereunder shall relieve the Company of any liability relating
to the failure to issue such Shares.
SECTION 9. TAXES. In connection with the grant of a Share Award, the
Grantee will be required to pay any applicable federal, state,
or local taxes. The Company will issue a Form 1099 to the
Grantee at the end of each year for the value of the Shares
received.
SECTION 10. INDEMNIFICATION. Each person who is or shall have been a
member of the Board shall be indemnified and held harmless by
the Company against and from any loss, cost, liability or
expense that may be imposed upon or reasonably incurred by him
in connection with or resulting from any claim, action, suit
or proceeding to which he may be a party or in which he may be
involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him
in settlement thereof, with the Company's approval, or paid by
him in satisfaction of judgment in any such action, suit or
proceeding against him; provided he shall give the Company an
opportunity, at its own expense, to handle and defend the same
before he undertakes to handle and defend it on his own
behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such
person may be entitled under the Company's Articles of
Incorporation or Code of Regulations, as a matter of law, or
otherwise, or any power that the Company may have to indemnify
him or hold him harmless.
SECTION 11. TERM OF PLAN. This Plan shall continue until terminated
pursuant to Section 12.
SECTION 12. AMENDMENT AND TERMINATION OF PLAN. The Board may, from
time to time, amend the Plan or any provision thereof in such
respects as the Board may deem advisable. Any amendment or
termination of the Plan shall not adversely affect any Share
Award previously granted. The Board may, at any time,
terminate the Plan.
SECTION 13. BENEFITS OF THE PLAN. This Plan shall inure to the benefit
of and be binding upon each successor of the Company. All
rights and obligations imposed upon a Grantee shall be binding
upon the Grantee's heirs, legal representatives and
successors.
SECTION 14. NON EXCLUSIVE COMPENSATION. The Share Awards granted pursuant
to this Plan shall be in addition to any other compensation,
cash or otherwise, determined by the Directors to be paid to
Non-Employee Directors.
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SECTION 15. GOVERNING LAW. The laws of the State of Ohio shall govern the
Plan regardless of the citizenship or residence of any
Grantee.
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EXHIBIT 5
[Letterhead of The Reynolds and Reynolds Company]
February 10, 2000
Ladies and Gentlemen:
As General Counsel and Secretary for The Reynolds and Reynolds Company (the
"Company"), I am familiar with the Amended Articles of Incorporation of the
Company under the laws of the State of Ohio, its Consolidated Code of
Regulations, and the respective actions taken by the Shareholders and by the
Board of Directors in connection therewith, and all subsequent corporate
proceedings with respect thereto.
In addition, I am familiar with the preparation of the Registration Statement on
Form S-8 registering 4,550 shares of Class A Common Stock, no par value,
relating to the issuance of the shares pursuant to the Company's Non-Employee
Director Stock Compensation Plan.
I am also acquainted with the business activities of the Company and have
examined corporate minute books, records and such other documents as I have
deemed necessary in order to render to you the following opinion.
Based upon the foregoing, I am of the opinion that:
1. The Company has been duly organized and is a validly existing
corporation in good standing under the laws of the State of Ohio.
2. The 4,550 shares of Class A Common Stock issued to the Company's
non-employee directors pursuant to the Company's Non-Employee Director
Stock Compensation Plan, as described in the Registration Statement on
Form S-8, have been duly authorized and validly issued, and are fully
paid and nonassessable as described in such Registration Statement.
Very truly yours,
/s/ Adam M. Lutynski
Adam M. Lutynski
General Counsel
and Secretary
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EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Reynolds and Reynolds Company on Form S-8, of our report dated November 16,
1999 (which report expresses an unqualified opinion and includes an explanatory
paragraph relating to the change in method of accounting for software revenue
recognition), appearing in the Annual Report on Form 10-K of The Reynolds and
Reynolds Company for the year ended September 30, 1999.
DELOITTE & TOUCHE LLP
/s/ Deloitte & Touche LLP
Dayton, Ohio
February 9, 2000
