<PAGE>
As filed with the Securities and Exchange Commission on September 11, 1997
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
BARRA, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
California 94-2993326
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
2100 Milvia Street
Berkeley, CA 94704-1113
(Address of principal executive offices) (Zip Code)
</TABLE>
BARRA STOCK OPTION PLAN
(Full title of the Plan)
James D. Kirsner
Chief Financial Officer
BARRA, Inc.
2100 Milvia Street, Berkeley, CA 94704-1113
(510)548-5442
(name, address, including zip code and telephone number,
including area code, of agent for service)
Copy to: Maria Louisa Hekker, Esq.
Chief Legal Officer
BARRA, Inc.
2100 Milvia Street, Berkeley, CA 94704-1113
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 700,000(1) $36.00(2) $25,200,000(2) $7,635.60
</TABLE>
(1) Number of additional shares of BARRA, Inc. (the "Registrant") Common Stock
that may be awarded and/or sold pursuant to the Registrant's BARRA Stock
Option Plan (the "Plan"). Prior to the date hereof, the Registrant
registered with the Securities and Exchange Commission Registration
No. 33-65558 and 33-82810, 2,200,000 shares of its Common Stock that may be
sold pursuant to the Plan.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(c) on the basis of the average high and low prices for
the Common Stock on September 8, 1997 as reported on the Nasdaq National
Market System.
- --------------------------------------------------------------------------------
<PAGE>
In accordance with Instruction E of Form S-8, the contents of the Registrant's
registration statements on Form S-8 Registration No. 33-65558 and 33-82810,
filed with the Securities and Exchange Commission (the "Commission") filed on
July 2, 1993 and August 15, 1994, respectively, are incorporated by reference
herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10 (A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The document(s) containing the information specified in Item 1 will
be sent or given to participants in the BARRA Stock Option Plan (the "Plan") as
specified in Rule 428(b)(1) and is not required to be filed as part of the
registration statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Item 2 will
be sent or given to participants in the Plan as specified in Rule 428(b)(1) and
is not required to be filed as part of this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement covers shares of Common Stock of BARRA,
Inc. (the "Registrant") that have been authorized for issuance pursuant to the
Registrant's Plan.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Commission.
(a) (i) The Registrant's annual report on Form 10-K for the fiscal year
ended March 31, 1997; and
(ii) The Registrant's proxy statement and exhibits thereto in
connection with its annual meeting of shareholders of common
stock held on July 31, 1997.
(b) All other reports filed pursuant to Section 13(a) or 15(b) of the
Securities Exchange Act of 1934, as amended, since the end of the
fiscal year covered by the Company's annual report referred to in
(a)(i) above.
2
<PAGE>
ITEM 8. EXHIBITS.
Regulation S-K Reference to Prior filing or
EXHIBIT NO. Description Exhibit No. attached hereto
-------------------------------------------------------------------------------
4.3 BARRA Stock Option Plan Attached as Exhibit 4.3.
and Amendment thereto
5.1 Opinion of Graham & James LLP Attached as Exhibit 5.1.
23.1 Consent of Deloitte & Touche LLP Attached as Exhibit 23.1.
23.2 Consent of Graham & James LLP Reference is made to
Exhibit 5.1.
24.0 Power of Attorney Reference is made to p.4.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Berkeley, State of California, on September 10,
1997.
BARRA, INC.
By /s/ Andrew Rudd
-----------------------------------------------
Andrew Rudd
Chairman, Chief Executive Officer
3
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Andrew Rudd and James D. Kirsner, or either of
them, as his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective 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 thing requisite and
necessary to be done in connection therewith as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof. This power of attorney expires on September 9, 1998.
Pursuant to the requirements of the Securities Act of 1933, 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/ Andrew Rudd Chief Executive Officer, Chairman September 10, 1997
- ------------------------- of the Board and Director (Principal
Andrew Rudd Executive Officer)
/s/ James D. Kirsner Chief Financial Officer (Principal September 10, 1997
- ------------------------- Financial and Accounting Officer)
James D. Kirsner
/s/ Ronald J. Lanstein Director and Vice Chairman September 10, 1997
- -------------------------
Ronald J. Lanstein
/s/ A. George Battle Director September 10, 1997
- -------------------------
A. George Battle
/s/ John F. Casey Director September 10, 1997
- -------------------------
John F. Casey
/s/ M. Blair Hull Director September 10, 1997
- -------------------------
M. Blair Hull
/s/ Norman J. Laboe Director September 10, 1997
- -------------------------
Norman J. Laboe
</TABLE>
4
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Description Page Number
- -------------------------------------------------------------------------------
4.3 BARRA Stock Option Plan and Amendment thereto 6
5.1 Opinion of Graham & James LLP 18
23.1 Consent of Deloitte & Touche LLP 20
23.2 Consent of Graham & James LLP (Reference is made to N/A
Exhibit 5)
24.0 Power of Attorney (Reference is made to page 4) N/A
5
<PAGE>
Exhibit 4.3
BARRA STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this Stock Option Plan are
to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentives to Employees and
Non-Employee Directors and Consultants of the Company and its Subsidiaries,
and to promote the success of the business of the Company and its
Subsidiaries. At the discretion of the Committee, Options granted hereunder
may be either Incentive Stock Options or Nonstatutory Stock Options.
2. DEFINITIONS: As used herein, and in any Option granted hereunder, the
following definitions shall apply:
(a) "BOARD" shall mean the Board of Directors of the Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
(c) "COMMON STOCK" shall mean the Common Stock of the Company.
(d) "COMPANY" shall mean BARRA, Inc., a California corporation,
and except as provided in Section 11 below, its successors in interest.
(e) "COMMITTEE" shall mean the Committee appointed by the Board in
accordance with Section 4 of the Plan. If the Board does not appoint or
ceases to maintain a Committee, the term "Committee" shall refer to the Board.
(f) "CONSULTANT" shall mean any independent contractor retained to
perform services for the Company or any Subsidiary.
(g) "CONTINUOUS EMPLOYMENT" shall mean the absence of any
interruption or termination of service as an Employee or Non-Employee
Director or Consultant by the Company or any Subsidiary. For purposes of the
preceding sentence, service shall not be considered interrupted during any
period of vacation, sick leave, maternity leave or any other absence approved
by the Board and shall not be considered terminated as a result of a transfer
between the Company and any Subsidiary.
(h) "DISINTERESTED PERSON" shall mean a person who has not at any
time within one year prior to service as a member of the Committee (or during
such service) been granted or awarded Options or other equity securities
pursuant to the Plan or any other plan of the Company or any Subsidiary.
Notwithstanding the foregoing, a member of the Committee shall not fail to be
a Disinterested Person merely because he or she participates in a plan
meeting the requirements of Rule 16b-3(c)(2)(i)(A) or (B) promulgated under
the Exchange Act.
<PAGE>
(i) "EMPLOYEE" shall mean any person, including any officer
(whether or not he or she is a director of the Company or a Subsidiary),
employed by the Company or any Subsidiary.
(j) "EXCHANGE ACT" shall mean the Securities and Exchange Act of
1934, as amended.
(k) "INCENTIVE STOCK OPTION" shall mean any option granted under
this Plan and any other option granted to an Employee in accordance with the
provisions of Section 422 of the Code and the regulations promulgated
thereunder.
(l) "NON-EMPLOYEE DIRECTOR" shall mean any director of the Company
or Subsidiary who is not an officer or common-law employee of the Company or
any Subsidiary.
(m) "NONSTATUTORY STOCK OPTION" shall mean any Option granted
under the Plan that is not an Incentive Stock Option.
(n) "OPTION" shall mean a stock option granted pursuant to the Plan.
(o) "OPTION AGREEMENT" shall mean a written agreement between the
Company and the Optionee regarding the grant and exercise of Options to
purchase Shares and the terms and conditions thereof as determined by the
Committee pursuant to the Plan.
(p) "OPTIONED SHARES" shall mean the Common Stock subject to an
Option.
(q) "OPTIONEE" shall mean an Employee, Non-Employee Director or
Consultant who receives an Option under the Plan.
(r) "PARENT" shall mean a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(s) "PLAN" shall mean this Stock Option Plan.
(t) "REGISTRATION DATE" shall mean the effective date of the first
registration statement filed by the Company, pursuant to Section 12(g) of the
Exchange Act, with respect to any class of the Company's equity securities.
(u) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
(v) "SHARE" shall mean a share of the Common Stock, as adjusted in
accordance with Section 11 of the Plan.
2
<PAGE>
(w) "SUBSIDIARY" shall mean a "subsidiary corporation", whether
now or hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Without limiting the application of
Section11 of the Plan, the maximum aggregate number of Shares which may be
optioned and sold under the Plan is 2,200,000 Shares. The Shares may be
authorized but unissued or reacquired Common Stock. Except as provided in
Section 9(c) and Section 9(g) of the Plan, if an Option expires or becomes
unexercisable for any reason without having been exercised in full, the
Shares which were subject to the Option but as to which the Option was not
exercised shall become available for future Option grants under the Plan,
unless the Plan shall have been terminated.
The Company intends that as long as it is not subject to the reporting
requirements of Section13 or 15(d) of the Exchange Act and is not an
investment company registered or required to be registered under the
Investment Company Act of 1940, all offers and sales of Options and Common
Stock issuable upon exercise of any Option shall be exempt from registration
under the provisions of Section 5 of the Securities Act, and the Plan shall
be administered in such a manner so as to preserve such exemption. The
Company intends that the Plan shall constitute a written compensatory benefit
plan within the meaning of Rule 701(b) of 17 CFR Section 230.701 promulgated
by the Securities and Exchange Commission pursuant to such Act. The
Committee shall designate which Options granted under the Plan by the Company
are intended to be granted in reliance on Rule 701.
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE. The Plan shall be administered by the Board. The
Board may appoint a Committee consisting of not less than (2) members of the
Board to administer the Plan, subject to such terms and conditions as the
Board may prescribe. Once appointed, the Committee shall continue to serve
until otherwise directed by the Board.
From time to time, the Board may increase the size of the
Committee and appoint additional members thereof, remove members (with or
without cause) and appoint new members in substitution therefor, fill
vacancies, however caused, and remove all members of the Committee and,
thereafter, directly administer the Plan. Members of the Board or Committee
who are either eligible for Options or have been granted Options may vote on
any matters affecting the administration of the Plan or the grant of Options
pursuant to the Plan, except that no such member shall act upon the granting
of an Option to himself or herself, but any such member may be counted in
determining the existence of a quorum at any meeting of the Board or the
Committee during which action is taken with respect to the granting of an
Option to him or her.
The Committee shall meet at such times and places and upon such
notice as the Chairperson determines. A majority of the Committee shall
constitute a
3
<PAGE>
quorum. Any acts by the Committee may be taken at any meeting at which a
quorum is present and shall be by a majority vote of those members entitled
to vote. Additionally, any acts reduced to writing or approved in writing by
all of the members of the Committee shall be valid acts of the Committee.
(b) PROCEDURE AFTER REGISTRATION DATE. Notwithstanding subsection
(a) above, after the Registration Date, the Plan shall be administered either
by: (i) the full Board, provided that all members of the Board are
Disinterested Persons, or (ii) a Committee of two (2) or more directors, each
of whom is a Disinterested Person. After the Registration Date, the Board
shall take all action necessary to administer the Plan in accordance with the
then effective provisions of Rule 16b-3 promulgated under the Exchange Act,
provided that any amendment to the Plan required for compliance with such
provisions shall be made in accordance with Section 13 of the Plan.
(c) POWERS OF THE COMMITTEE. Subject to the provisions of the
Plan, the Committee shall have discretionary authority: (i) to determine,
upon review of relevant information, the fair market value of the Common
Stock; (ii) to determine the exercise price of Options to be granted, the
persons to whom and the time or times at which Options shall be granted, and
the number of Shares to be represented by each Option; (iii) to interpret the
Plan; (iv) to prescribe, amend and rescind rules and regulations relating to
the Plan; (v) to establish the terms and conditions of each Option granted
under the Plan (which terms and conditions need not be identical in any two
Options) and, with the consent of the holder thereof, to modify or amend any
Option; (vi) to authorize any person to execute on behalf of the Company any
instruments required to effect the grant of an Option awarded by the
Committee; (vii) to accelerate or (with the consent of an Optionee) to defer
an exercise date of any Option subject to the provisions of Section 9(a) of
the Plan; (viii) to determine whether Options granted under the Plan will be
Incentive Stock Options or Nonstatutory Stock Options; and (ix) to make all
other determinations deemed necessary or advisable for the administration of
the Plan.
(d) EFFECT OF THE COMMITTEE'S DECISION. All decisions,
determinations and interpretations of the Committee shall be final and
binding on all potential or actual Optionees, any other holder of an Option
or other equity security of the Company and all other persons. In any
controversy regarding the administration of the Plan, any arbitrator or court
reviewing any decision, determination or interpretation by the Committee
shall not set aside or modify such decision, determination or interpretation
unless it is arbitrary, capricious or clearly contrary to the terms of the
Plan.
5. ELIGIBILITY.
(a) PERSONS ELIGIBLE TO PARTICIPATE. Options under the Plan may
be granted only to Employees, Non-Employee Directors or Consultants whom the
Committee, in its sole discretion, may designate from time to time.
Incentive Stock Options may be granted only to Employees. An Optionee who
has been granted an Option may receive an additional Option or Options, if he
or she is otherwise eligible for such grant.
4
<PAGE>
However, the aggregate fair market value (determined in accordance with the
provisions of Section 8(a) of the Plan) of the Shares subject to one or more
Incentive Stock Options that are exercisable for the first time by an
Optionee during any calendar year (under all stock option plans of the
Company and its Parent and Subsidiaries) shall not exceed $100,000
(determined as of grant date).
(b) NO RIGHT TO CONTINUE EMPLOYMENT. Neither the establishment
nor operation of the Plan shall confer upon any Optionee or any other person
any right with respect to continuation of employment or other service with
the Company or any Subsidiary, nor shall the Plan interfere in any way with
the right of the Optionee or other person or the right of the Company or
Subsidiary to terminate such employment or service at any time.
6. TERM OF PLAN. The Plan shall become effective upon its adoption by
the Board or its approval by vote of the holders of the outstanding shares of
the Company stock entitled to vote on the adoption of the Plan (in accordance
with the provisions of Section 18 hereof), whichever is earlier. The Plan
shall continue in effect for a term of ten (10) years unless sooner
terminated under Section13 of the Plan.
7. TERM OF OPTION. Unless the Committee determines otherwise, at the
time of grant of an Option, the term of each Nonstatutory Stock Option
granted under the Plan shall be ten (10) years and one (1) day from the date
of grant and the term of each Incentive Stock Option shall be ten (10) years
from the date of grant. In all cases the term of the Option shall be set
forth in the Option Agreement. No Incentive Stock Option shall be
exercisable after the expiration of ten (10) years from the date such Option
is granted, provided that no Option granted to any Employee who, at the date
such Option is granted, owns (within the meaning of Section 424(d) of the
Code) more that ten percent (10%) of the total combined voting power of all
classes of stock of the Company, its Parent or any Subsidiary shall be
exercisable after the expiration of five (5) years from the date such Option
is granted.
8. OPTION PRICE, CONSIDERATION, AND RESTRICTIONS.
(a) OPTION PRICE. Except as provided in subsection (b), the
option price for the Shares to be issued pursuant to any Option shall be such
price as is determined by the Committee, which shall in no event be less than
(i) in the case of Incentive Stock Options, the fair market value of such
Shares on the date the Option is granted; or (ii) in the case of Nonstatutory
Stock Options, 85% of such fair market value. Fair market value of the
Common Stock shall be determined by the Committee in its discretion using
such criteria as it deems relevant; provided, however, that where there is a
public market for the Common Stock, the fair market value per share shall be
the average of the last reported bid and asked prices of the Common Stock on
the date of the grant, as reported in THE WALL STREET JOURNAL (or, if not so
reported, as otherwise reported by the National Association of Securities
Dealers Automated Quotation (NASDAQ) System) or, in the event the Common
Stock is listed on a national securities exchange, (within the
5
<PAGE>
meaning of Section 6 of the Exchange Act), the fair market value per Share
shall be the closing price on such exchange on the date of grant of the
Option, as reported in THE WALL STREET JOURNAL.
(b) TEN PERCENT SHAREHOLDERS. No Option shall be granted to any
Employee who, at the date such Option is granted, owns (within the meaning of
Section 424(d) of the Code) more than ten percent (10%) of the total combined
voting power or value of all classes of stock of the Company, its Parent or
any Subsidiary, unless the option price for the Shares to be issued pursuant
to such Option is at least equal to 110 percent of the fair market value of
such Shares on the grant date as determined by the Committee in the manner
set forth in subsection (a) above.
(c) CONSIDERATION. The consideration to be paid for the Shares to
be issued upon exercise of an Option shall be payment in cash or by check
unless payment in some other manner, including by promissory note, shares of
the Company's Common Stock or such other consideration and method of payment
for the issuance of Shares as may be permitted under Sections 408 and 409 of
the California General Corporation Law, is authorized by the Committee at the
time of the grant of the Option. Any cash or other property received by the
Company from the sale of Common Stock pursuant to the Plan shall constitute
part of the general assets of the Company.
9. EXERCISE OF OPTION.
(a) VESTING PERIOD. Any Option granted hereunder shall be
exercisable at such times and under such conditions as determined by the
Committee and as shall be permissible under the terms of the Plan, which
shall be specified in the Option Agreement evidencing the Option. Unless the
Committee specifically determines otherwise at the time of the grant of the
Option, each Option shall vest and become exercisable in four substantially
equal installments beginning at the end of the first year of the term of the
Option, subject to the Optionee's Continuous Employment. In no event shall
Options be exercisable at a rate of less than 20% per year. An Option may
not be exercised for fractional shares or for less than ten (10) Shares.
(b) EXERCISE PROCEDURES. An Option shall be deemed to be
exercised when written notice of such exercise has been given to the Company
in accordance with the terms of the Option by the person entitled to exercise
the Option and full payment for the Shares with respect to which the Option
is exercised has been received by the Company. As soon as practicable
following the exercise of an Option in the manner set forth above, the
Company shall issue or cause its transfer agent to issue stock certificates
representing the Shares purchased. Until the transfer by the Optionee of
consideration for the Shares (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company),
no right to vote or receive dividends or any other rights as a stockholder
shall exist with respect to the Optioned Shares notwithstanding the exercise
of the Option. No adjustment will be made for a dividend or
6
<PAGE>
other rights for which the record date is prior to the date the transfer by
the Optionee of consideration for the Shares except as provided in Section 11
of the Plan.
(c) EXERCISE OF OPTION WITH STOCK. If an Optionee is permitted to
exercise an Option by delivering shares of the Company's Common Stock, the
option agreement covering such Option may include provisions authorizing the
Optionee to exercise the Option, in whole or in part, by (i) delivering whole
shares of the Company's Common Stock previously owned by such Optionee
(whether or not acquired through the prior exercise of a stock option) having
a fair market value equal the option price; or (ii) directing the Company to
withhold from the Shares that would otherwise be issued upon exercise of the
Option that number of whole Shares having a fair market value equal to the
Option price. Shares of the Company's Common Stock so delivered or withheld
shall be valued at their fair market value at the close of the last business
day immediately preceding the date of exercise of the Option, as determined
by the Committee. Any balance of the Option price shall be paid in cash. Any
Shares delivered or withheld in accordance with this provision shall not
become available for purposes of the Plan and for Options subsequently
granted thereunder. After the Registration Date, any exercise of an Option
under 9(c)(i) or 9(c)(ii) above by any person subject to short-swing trading
liability under Section 16(b) of the Exchange Act shall comply with the
relevant requirements of Rule 16b-3(d) or (e) of the Exchange Act.
(d) TERMINATION OF STATUS AS EMPLOYEE, NON-EMPLOYEE DIRECTOR AND
CONSULTANT. If an Optionee shall cease to be an Employee or Non-Employee
Director or Consultant for any reason other than permanent and total
disability or death, he or she may, but only within 90 days (or such other
period of time as is determined by the Committee) after the date he or she
ceases to be an Employee, Non-Employee Director and Consultant, exercise his
or her Option to the extent that he or she was entitled to exercise it and
the date of such termination, subject to the condition that no Option shall
be exercised after the expiration of the Option period.
(e) DISABILITY OF OPTIONEE. In the event of the permanent and
total disability (within the meaning of Section 22(e)(3) of the Code) during
the Option period of an Optionee who is at the time of such disability, or
was within the 90-day period prior thereto, an Employee, Non-Employee
Director or Consultant and who was in Continuous Employment as such from the
date of the grant of the Option until the date of disability or termination,
the Option may be exercised at any time within one year following the date of
disability, but only to the extent that the Optionee was entitled to exercise
the Option at the time of the termination or disability, whichever comes
first, subject to the condition that no Option shall be exercised after the
expiration of the Option period.
(f) DEATH OF OPTIONEE. In the event of the death during the
Option period of an Optionee who is at the time of his or her death, or was
within the 90-day period immediately prior thereto, an Employee, Non-Employee
Director or Consultant and who was in Continuous Employment as such from the
date of the grant of the Option until the date of death or termination, the
Option may be exercised, at any time within one (1) year
7
<PAGE>
after the Optionee's death, by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest, inheritance or
otherwise as a result of the Optionee's death, but only to the extent that
the Optionee was entitled to exercise the Option at the time of termination
or death, whichever comes first, subject to the condition that no Option
shall be exercised after the expiration of the Option period.
(g) TAX WITHHOLDING. When an Optionee is required to pay to the
Company an amount with respect to tax withholding obligations in connection
with the exercise of an Option granted under the Plan, the Optionee may
elect, prior to the date the amount of such withholding tax is determined
(the "Tax Date") to make such payment, or such increased payment as the
Optionee elects to make up to the maximum federal, state and local marginal
tax rates, including any related obligation under the Federal Insurance
Contribution Act, applicable to the Optionee and the particular transaction,
by (i) delivering cash; (ii) delivering part or all of the payment in
previously owned stock (whether or not acquired through the prior exercise of
a stock option); or (iii) irrevocably directing the Company to withhold from
the Shares that would otherwise be issued upon exercise of the Option that
number of whole Shares having a fair market value equal to the amount of tax
required or elected to be withheld (a "Withholding Election"). If an
Optionee's Tax Date is deferred beyond the date of exercise and the Optionee
makes a Withholding Election, the Optionee will receive the full amount of
Shares otherwise issuable upon exercise of the Option minus the number of
Shares necessary to satisfy his or her minimum withholding requirements
measured on the date the Option is exercised, or such higher payment as he or
she may have elected to make, with adjustments to be made in cash after the
Tax Date.
After the Registration Date, any withholding of Shares with
respect to taxes arising in connection with the exercise of an Option by any
person subject to short-swing trading liability under Section 16(b) of the
Exchange Act shall satisfy the following conditions:
(i) An advance election to withhold Shares in settlement of a
tax liability must satisfy the requirements of Rule 16b-3(d)(1)(i), regarding
participant-directed transactions;
(ii) Absent such an election, the withholding of Shares
to settle a tax liability may occur only during the quarterly window period
described in Rule 16b-3(e);
(iii) Absent an advance election or window-period withholding,
the Optionee may deliver Shares owned prior to the exercise of an Option to
settle a Tax liability arising upon exercise of the Option, in accordance
with Rule 16b-3(f); or
(iv) The delivery of Previously acquired Shares (but not
the withholding of newly acquired Shares) will be allowed where an election
under Section 83(b) of the Code accelerates the Tax Date to a day that occurs
less than six months after
8
<PAGE>
the advance election and is not within the quarterly window period described
in Rule 16b-3(e).
Any adverse consequences incurred by an Optionee with respect to
the use of Shares to pay any part of the Option price or of any tax in
connection with the exercise of an Option, including without limitation any
adverse tax consequences arising as a result of a disqualifying disposition
within the meaning of Section 422 of the Code, shall be the sole
responsibility of the Optionee.
Any Shares delivered or withheld in accordance with this Section
9(g) shall not become available for purposes of the Plan and for Options
subsequently granted thereunder.
10. NON-TRANSFERABILITY OF OPTIONS. An Option may not be sold,
pledged, assigned, hypothecated, transferred or disposed of in any manner
other than by will or by the laws of descent and distribution and may be
exercised, during the lifetime of the Optionee, only by the Optionee. A
Nonstatutory Stock Option may be transferred pursuant to a qualified domestic
relations order within the meaning of Section 414(p) of the Code. If the
Option Agreement permits, the Optionee may designate a beneficiary who may
(i) exercise an Option under Section 9(f) above or (ii) receive Shares issued
pursuant to the exercise of an Option where the death of an Optionee occurs
between the date on which the Optionee exercises the Option and the date the
Company issues the Shares.
11. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. Subject to any required
action by the shareholders of the Company, the number of Shares of Common
Stock covered by each outstanding Option, and the per share price thereof in
each such Option, shall be proportionately adjusted for any increase or
decrease in the number of issued Shares of Common Stock resulting from a
stock split, reverse stock split, combination, reclassification, the payment
of a stock dividend on the Common Stock or any other increase or decrease in
the number of such Shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration". Such adjustment shall be made
by the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issue by the Company of
shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to an
Option.
Unless otherwise determined by the Board, upon the dissolution or
liquidation of the Company or upon any merger or consolidation, if the
Company is not the surviving corporation, the Options granted hereby shall
terminate and thereupon become null and void; provided, however, that the
Optionee shall be given not less than ten (10) days' notice of such event and
the exercisability of each outstanding option shall be accelerated
9
<PAGE>
so that the Optionee may within such period exercise up to the entire
unexercised portion of his or her option.
12. TIME OF GRANTING OPTIONS. Unless otherwise specified by the
Committee, the date of grant of an Option under the Plan shall be the date on
which the Committee makes the determination to grant such Option or, if
later, the date on which are satisfied any conditions precedent to such
grant. Prior to the Registration Date, if the grant of an Option is subject
to shareholder approval, the date of grant shall be determined as if the
Option had not been subject to such approval. After the Registration Date,
if the grant of an Option is subject to shareholder approval, for purposes of
complying with Rule 16b-3(c), the date of grant shall be the date on which
shareholder approval is obtained. As soon as feasible after the Committee
makes its determination regarding the grant of an Option, the Committee shall
notify the individual or class of persons who are the recipients of the grant.
13. AMENDMENT AND TERMINATION OF THE PLAN. The Board may amend or
terminate the Plan from time to time in such respects as the Board may deem
advisable, except that, without shareholder approval no such amendment or
modification shall change the number of Shares subject to the Plan, change
the designation of the class of employees eligible to receive Options or add
any material benefit to Optionees under the Plan. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if the Plan had not been
amended or terminated.
14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
with respect to an Option granted under the Plan unless the exercise of such
Option and the issuance and delivery of such Shares pursuant thereto shall
comply with all relevant provisions of law, including, without limitation,
the Securities Act, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the Shares
may then be listed, and shall be further subject to the approval of counsel
for the Company with respect to such compliance. As a condition to the
exercise of an Option, the Company may require the person exercising such
Option to represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
15. RESERVATION OF SHARES. During the term of this plan, the Company
will at all times reserve and keep available the number of Shares as shall be
sufficient to satisfy the requirements of the Plan. Inability of the Company
to obtain from any regulatory body having jurisdiction and authority deemed
by the Company's counsel to be necessary to the lawful issuance and sale of
any Shares hereunder shall relieve the Company of any liability in respect of
the nonissuance or sale of such Shares as to which such requisite authority
shall not have been obtained.
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16. INFORMATION TO OPTIONEE. During the term of any Option granted
under the Plan, the Company shall provide or otherwise make available to each
Optionee a copy of its annual report to shareholders and financial
information which is provided to its shareholders in accordance with the
provisions of the Company's Bylaws and applicable law.
17. OPTION AGREEMENT. All Options granted under the Plan shall be
evidenced by Option Agreements.
18. SHAREHOLDER APPROVAL. The Plan shall be subject to approval by the
affirmative vote of the holders of a majority of the securities of the
Company present, or represented, and entitled to vote at a meeting duly held,
within twelve (12) months of the adoption of the Plan.
19. MANDATORY ARBITRATION. Any dispute arising out of or relating to
this Plan or any Option Agreement shall be resolved solely by arbitration
before one arbitrator in accordance with the Employee Benefit Plan Claim
Rules of the American Arbitration Association. The location of the
arbitration proceeding shall be in San Francisco, California. Judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction. Each party to any dispute regarding the Plan or an Option
Agreement shall pay the costs and fees (including attorney's fees) of
presenting his, her or its case in arbitration. All other costs of
arbitration, including the costs of any transcript of the proceedings,
administrative fees and the arbitrator's fees, shall be borne equally by the
parties. All statutes of limitation which would otherwise be applicable
shall apply to any arbitration proceeding. The provisions of this Section 20
are exclusive for all purposes and applicable to any and all disputes arising
out of or relating to the Plan or any Option Agreement. The arbitrator who
hears and decides any dispute shall have jurisdiction and authority to award
only compensatory damages to make whole a person or entity sustaining
foreseeable economic loss, and, shall not have jurisdiction or authority to
make any other award of any type, including without limitation, punitive
damages, unforseeable economic damages, adverse tax consequences, damages for
pain, suffering or emotional distress, or any other kind or form of damages.
The remedy, if any, awarded by the arbitrator shall be the sole and exclusive
remedy for any dispute which is subject to arbitration under this Plan.
Rev. 7/29/91
Rev. 8/27/91
Rev. 9/10/92
Rev. 7/28/94
11
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AMENDMENT TO THE BARRA STOCK OPTION PLAN
WHEREAS, the increase in the number of shares of Common Stock of BARRA, Inc.
(the "Corporation") reserved for issuance of stock options under the BARRA,
Inc. Stock Option Plan (the "Plan") is necessary to enable the Corporation to
continue to provide its employees with equity ownership as an incentive to
contribute to the success of the Corporation; and
WHEREAS, under Section 13 of the Plan, the Corporation's Board of Directors
may amend the Plan to increase the number of shares subject to the Plan, if
shareholder approval is also obtained; and
WHEREAS, during its Quarterly Meeting on April 24, 1997, the Corporation's
Board of Directors approved the amendment of the Plan to increase the number
of shares of the Corporation's common stock reserved for issuance thereunder
from 2,200,000 to 2,900,000, subject to the approval of the Corporation's
shareholders; and
WHEREAS, during its Quarterly Meeting on April 24, 1997, the Corporation's
Board of Directors authorized the Corporation's officers to take any and all
actions necessary to implement such amendment of the Plan, subject to the
approval of such amendment by the Corporation's shareholders; and
WHEREAS, during the Annual Meeting of Shareholders on July 31, 1997, the
Corporation's shareholders approved and ratified the increase in the number
of shares of the Corporation's common stock reserved for issuance under the
Plan from 2,200,000 to 2,900,000, and further approved and ratified all steps
taken by the Board of Directors to effect the addition of such shares to the
Plan;
NOW THEREFORE, the Plan is amended effective as of April 24, 1997 as follows:
The first sentence of Section 3 of the Plan shall be amended by replacing
"2,200,000" with "2,900,000".
By authority of the Board of Directors and the shareholders of the Corporation
pursuant to their respective actions specified above, the Chief Financial
Officer of the Corporation has executed this document as of April 24, 1997.
BARRA, INC.
/s/ James D. Kirsner
--------------------
James D. Kirsner
Chief Financial Officer
<PAGE>
Exhibit 5.1
September 11, 1997
BARRA, Inc.
2100 Milvia Street
Berkeley, CA 94704-1113
Ladies and Gentlemen:
You have requested our opinion as special counsel for BARRA, Inc., a California
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder, of an additional 700,000 shares (the "Shares") of the Company's
Common Stock, no par value reserved for issuance under the BARRA Stock Option
Plan (the "Plan"), pursuant to a Registration Statement on Form S-8 (the
"Registration Statement").
For purposes of this opinion, we have examined the Registration Statement as
filed with the Securities and Exchange Commission on the date hereof, and the
exhibits thereto. We have also been furnished with and have examined originals
or copies, certified or otherwise identified to our satisfaction, of all records
of the Company, agreements and other instruments, certificates of officers and
representatives of the Company, certificates of public officials and other
documents as we have deemed necessary to review as a basis for the opinion
hereafter expressed. As to questions of fact material to such opinion, we have,
where relevant facts were not independently established, relied upon such
further legal and factual examination and investigation as we deem necessary for
purposes of rendering the following opinion.
In our examination we have assumed without independent investigation with
respect to the accuracy thereof, the genuineness of all signatures, the legal
capacity of natural persons, the correctness of facts set forth in certificates,
the authenticity, accuracy and completeness of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the originals of
such copies. We
<PAGE>
BARRA, INC.
September 11, 1997
Page 2
have also assumed that such documents have each been duly authorized, properly
executed and delivered by each of the parties thereto other than the Company.
We have also assumed that the Shares, when issued, will be issued in compliance
with the Securities Act of 1933, as amended, and with the Company's Amended and
Restated Articles of Incorporation and in accordance with the terms of and in
exchange for consideration in the amount of the option price for the Shares as
specified in the Plan.
We are members of the bar of the State of California. Our opinions below are
limited to the laws of the State of California and the federal securities laws
of the United States.
Based on the foregoing, and subject to the assumptions and qualifications set
forth herein, it is our opinion that all of the Shares, when issued, will be
legally and validly issued, fully paid and nonassessable.
We consent to the filing and use of this opinion as an exhibit to the
Registration Statement and consent to the use of our name under the caption
"Legal Matters" in the prospectus to be distributed in connection with the
issuance of the Shares and the grant of options under the Plan.
Sincerely yours,
/s/ Graham & James LLP
- ----------------------
GRAHAM & JAMES LLP
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of BARRA, Inc. on Form S-8 of our report dated May 9, 1997, appearing in the
Annual Report on Form 10-K of BARRA, Inc. for the year ended March 31, 1997.
/s/ Deloitte & Touch LLP
- ------------------------
Deloitte & Touche LLP
September 10, 1997
