<PAGE>
As filed with the Securities and Exchange Commission on August 6, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________________
POST-EFFECTIVE AMENDMENT NO. 3
TO FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
BARRA, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-2993326
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2100 Milvia Street
Berkeley, CA 94704-1113
(Address of Principal Executive Offices) (Zip Code)
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 Hekker, Esq.
General Counsel
BARRA, Inc.
2100 Milvia Street, Berkeley, CA 94704-1113
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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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>
See below* N/A* N/A* N/A* N/A*
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* No additional securities are to be registered, and registration fees were
paid upon filing of the original Registration Statements on Form S-8 File
No. 33-65558, 33-82810 and 333-35379. Therefore, no further registration
fee is required.
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EXPLANATORY NOTE
This Post-Effective Amendment No. 3 (this "Amendment"), to those certain
Registration Statements on Form S-8 (File Nos. 33-65558 filed on July 2,
1993, 33-82810 filed on August 15, 1994, 333-35379 filed on September 11,
1997, 333-35379 filed on August 14, 1998, 333-35379 filed on January 29, 1999
collectively the "Registration Statements") is being filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act") by BARRA, Inc., a
Delaware corporation (the "Registrant").
The BARRA Stock Option Plan (the "Plan") is being amended pursuant to
Amendment No. 3 to the Plan (attached to this Registration Statement as
Exhibit 4.4) to (1) eliminate the optionee's ability to pay for the exercise
price of options under Section 9(c) of the Plan by directing the Registrant
to withhold from the shares that would otherwise be issued upon the exercise
of the option, that number of shares having a fair market value equal to the
exercise price; (2) restrict the optionee's ability to pay for the exercise
price of options under Section 9(c) of the Plan and for tax withholding
obligations under Section 9(g) of the Plan, by delivery of shares of the
Registrant previously owned by the optionee, so that such shares delivered
must have been held for at least six months prior to the date of exercise of
the option; (3) allow optionees to pay for the exercise price through a
commitment for a "same-day sale" from the optionee and a dealer of the
National Association of Securities Dealers, under Section 9(c) of the Plan;
and (4) restrict the number of shares to be withheld by the Registrant or to
be delivered by the optionee to satisfy tax withholding obligations under
Section 9(g) of the Plan so that only a minimum number of shares can be so
withheld or delivered to satisfy tax withholding obligations based on the
minimum statutory withholding rates.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The document(s) which updates the information specified in Item 1
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 the Amendment.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) which updates 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 the Amendment.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Amendment the
following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Registrant's annual report filed on Form 10-K for the fiscal year
ended March 31, 1999, filed pursuant to Section 13 of the Securities
Exchange Act of 1934 ("Exchange Act") on June 29, 1999 (File
No. 000-19690).
(b) The Registrant's current report on Form 8-K filed pursuant to the
Exchange Act on April 23, 1999 (File No. 000-19690).
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(c) The Registrant's current report on Form 8-K filed pursuant to the
Exchange Act on August 3, 1999 (File No. 000- 19690).
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (Commission File No.
000-19690), dated November 6, 1991, filed pursuant to Section 12(g) of
the Exchange Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act before the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Amendment and to be a
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law
provides that a provision eliminating or limiting the personal liability of a
director to a corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director does not eliminate or limit the liability of
a director: (i) for any breach of their duty of loyalty to the corporation or
its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases or redemptions
as provided in Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
The Registrant's Certificate of Incorporation authorizes the Registrant
to provide indemnification of agents (as defined in Section 145 of the
General Corporation Law of the State of Delaware) for breach of duty to the
Registrant and its stockholders through bylaw provisions or through
agreements with agents or both, in excess of the indemnification otherwise
permitted by Section 145 of the General Corporation Law of the State of
Delaware, subject to the limits on such excess indemnification created by
applicable Delaware law (statutory or non-statutory), with respect to actions
for breach of duty to the Registrant, its stockholders and others.
The Registrant's Bylaws provide that the Registrant shall indemnify each
of its agents (as defined in Section 145 of the General Corporation Law of
the State of Delaware) against expenses, judgments, fines, settlements and
other amounts, actually and reasonably incurred by such person by reason of
such person's having been made or having been threatened to be made a party
to a proceeding to the fullest extent permissible by the provisions of
Section 145 of the General Corporation Law of the State of Delaware. The
Registrant believes that indemnification under its Bylaws covers at least
negligence and gross negligence on the part of indemnified parties. The
Registrant's Bylaws also permit it to purchase and maintain insurance on
behalf of any agent of the Registrant against any liability asserted against,
or incurred by, the agent in such capacity or arising out of the agent's
status as such whether or not the Registrant would have the power to
indemnify the agent against that liability under the provisions of Section
145 of the General Corporation Law of the State of Delaware. The Registrant
currently has secured such insurance on behalf of its directors and officers.
The Registrant has entered into agreements to indemnify certain of its
directors and officers, in addition to indemnification provided for in the
Registrant's Bylaws. These agreements, among other things, indemnify the
Registrant's directors and officers for certain expenses (including
attorneys' fees), witness fees, judgments, fines and settlement amounts
incurred by any such person in connection with any threatened, pending or
completed action, suit or proceeding, arising out of such person's services
as a director or officer of the Registrant or any other
3
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company or enterprise to which the person provides services at the request of
the Registrant. The Registrant believes that these provisions and agreements
are necessary to attract and retain qualified persons as directors and
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following additional exhibits are filed herewith.
<TABLE>
<CAPTION>
REGULATION S-K REFERENCE TO PRIOR FILING OR
EXHIBIT NO. DESCRIPTION EXHIBIT NO. ATTACHED HERETO
-------------- ----------- ----------------------------
<S> <C> <C>
4.1 BARRA Stock Option Plan and Incorporated by reference to
Amendment No.1 thereto Exhibit 4.3 to the Registrant's
registration statement on Form
S-8 filed with the Commission
on September 11, 1997. (File
No. 333-35379)
4.2 Post Effective Amendment Incorporated by reference to
No.1 to Form S-8 Registrant's registration
statement on Form S-8 filed
with the Commission on August
14, 1998 (File No. 333-35379).
4.3 Post Effective Amendment Incorporated by reference to
No.2 to Form S-8 Registrant's registration
statement on Form S-8 filed
with the Commission on January
29, 1999 (File No. 333-35379).
4.4 Amendment No. 3 to the BARRA Attached hereto as Exhibit 4.4
Stock Option Plan
24.0 Power of Attorney Reference is made to p. 7.
</TABLE>
ITEM 9. UNDERTAKINGS.
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 (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective
Registration Statement;
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(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 Registration Statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in
a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
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 securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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.
5
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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 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 August 5, 1999.
BARRA, INC.
By /s/ Kamal Duggirala
--------------------------------------
Kamal Duggirala
Chief Executive Officer
6
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kamal Duggirala and James D. Kirsner, or each
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 may be signed in
several counterparts.
Pursuant to the requirements of the Securities Act of 1933, this Post Effective
Amendment No. 3 to the Registration Statements have been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Kamal Duggirala Chief Executive Officer August 5, 1999
----------------------------- (Principal Executive
Kamal Duggirala Officer)
/s/ Andrew Rudd Chairman of the Board and August 5, 1999
----------------------------- Director
Andrew Rudd
/s/ James D. Kirsner Chief Financial Officer August 5, 1999
----------------------------- (Principal Financial and
James D. Kirsner Accounting Officer)
/s/ Ronald J. Lanstein Director August 5, 1999
-----------------------------
Ronald J. Lanstein
/s/ A. George Battle Director August 5, 1999
-----------------------------
A. George Battle
/s/ John F. Casey Director August 5, 1999
-----------------------------
John F. Casey
7
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/s/ M. Blair Hull Director August 5, 1999
-----------------------------
M. Blair Hull
/s/ Norman J. Laboe Director August 5, 1999
-----------------------------
Norman J. Laboe
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER EXHIBIT DESCRIPTION PAGE NUMBER
------ ------------------- -----------
<S> <C> <C>
4.1 BARRA Stock Option Plan and Amendment No.1 N/A
thereto(1)
4.2 Post Effective Amendment No.1 to Form S-8(2) N/A
4.3 Post Effective Amendment No.2 to Form S-8(3) N/A
4.4 Amendment No. 3 to BARRA Stock Option Plan 10
24.0 Power of Attorney (Reference is made to page 7) 7
</TABLE>
(1) Incorporated by reference to Exhibit No. 4.3 to the Registrant's
registration statement Form S-8 filed with the Commission on September
11, 1997 (File No. 333-35379).
(2) Incorporated by reference to Registrant's registration statement on
Form S-8 filed with the Commission on August 14, 1998 (File
No. 333-35379).
(3) Incorporated by reference to Registrant's registration statement on
Form S-8 filed with the Commission on January 29, 1999 (File
No. 333-35379).
9
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Exhibit 4.4
AMENDMENT NO. 3 TO THE BARRA STOCK OPTION PLAN
WHEREAS, BARRA, Inc., a Delaware corporation (the "Company") has adopted and
implemented the BARRA Stock Option Plan (the "Plan").
WHEREAS, Section 9(c) of the Plan currently states that if an Optionee is
permitted to exercise an Option by delivering shares of Common Stock, an
option agreement for Options granted pursuant to the Plan 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 having a fair market value equal to 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.
WHEREAS, Section 9(g) of the Plan currently provides that when an Optionee is
required to pay to the Company tax withholding obligations arising from the
exercise of an Option granted under the Plan, the Optionee may elect to make
such payment, or increased payment as the Optionee elects to make, up to the
maximum federal, state and local marginal tax rates, including any related
obligations under the Federal Insurance Contribution Act, applicable to the
Optionee and the particular transaction, by delivery of shares already owned
by the Optionee or by directing the Company to withhold from 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.
WHEREAS, it is in the best interest of the Company to amend Section 9(c) and
Section 9(g) in order to satisfy accounting rules issued by the Financial
Accounting Standards Board of the Financial Accounting Foundation (FASB) so
that "fixed award" accounting will be applied to stock option grants pursuant
the Plan.
WHEREAS, it is also in the best interest of the Company to amend Section 9(c)
to permit "same-day sale" commitments as valid consideration for the exercise
price of the Options.
WHEREAS, Section 13 of the Plan reserves to the Company's Board of Directors
the power to amend the Plan, subject to stockholder approval in certain
respects.
NOW THEREFORE, the Plan is amended effective as of August 5, 1999, subject to
applicable regulatory approval, if any, as follows:
1. Section 9(c) of the Plan shall be amended by deleting the entire
section and replacing it with the following:
"If an Optionee is permitted to exercise an Option by delivering shares of
the Company's Common Stock to the Company or selling shares of the
Company's Common Stock, the
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option agreement covering such Option may include provisions authorizing
the Optionee to exercise the Option, in whole or in part, (i) by
delivering whole shares of the Company's Common Stock previously
owned by such Optionee for at least six (6) months prior to the date
of exercise of the Option (whether or not acquired through prior
exercise of a stock option) having a fair market value equal to the
option price; or (ii) through a "same-day sale" commitment from the
Optionee and a dealer of the National Association of Securities Dealers.
Shares of the Company's Common Stock delivered pursuant to subsection (i)
above 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 to the Company pursuant to subsection (i)
above 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 this Section 9(c) by any person subject to
short-swing trading liability under Section 16(b) of the Exchange Act shall
comply with the relevant requirements under Rule 16b-3(d) or (e) of the
Exchange Act."
2. Section 9(g) of the Plan shall be amended by deleting the first
paragraph which begins with "When an Optionee" and ends with "after the Tax
Date" and replacing such paragraph with the following:
"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 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), provided that such stock has been held
by the Optionee for at least six (6) months prior to the date of exercise
of the Option ("Delivery of Stock"); 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 withholding obligations. (a "Withholding
Election"). In the event that the Optionee elects to satisfy the tax
withholding obligations by Delivery of Stock or a Withholding Election, the
shares delivered or withheld, as the case may be, are only to meet required
tax withholding obligations based on the minimum statutory withholding
rates for federal and state tax purposes, including payroll taxes, that are
applicable to such supplemental taxable income, and the shares cannot be
delivered or withheld, as the case may be in excess of the minimum number
required to satisfy such tax withholding obligations. 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 tax withholding obligations
measured on the date the Option is exercised, with adjustments to be made
in cash after the Tax Date."
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By authority of the Board of Directors pursuant to their respective actions
specified above, the Chief Financial Officer of the Company has executed this
document as of August 5, 1999.
BARRA, INC.
/s/ James D. Kirsner
--------------------
James D. Kirsner
Chief Financial Officer
12
