<PAGE>
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
THE BISYS GROUP, INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-3532663
(State or Other I.R.S. Employer
Jurisdiction of Identification Number)
Incorporation or
Organization)
150 Clove Road
Little Falls, New Jersey 07424-2136
(Address of Principal Executive Offices) (Zip Code)
----------
The BISYS Group, Inc.
1996 Stock Option Plan
(Full Title of the Plan)
----------
KEVIN J. DELL, ESQ.
Vice President, General Counsel and Secretary
The BISYS Group, Inc.
150 Clove Road
Little Falls, New Jersey 07424-2136
(Name and address of agent for service)
(973)812-8600
(Telephone number, including Area Code, of Agent for Service)
----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
Title of Proposed Proposed
securities Amount maximum maximum
to be to be offering price aggregate Amount of
registered registered per share(1) offering price(1) registration fee
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.02 2,000,000 $31.3125 $62,625,000 $18,474.38
par value (including Shares
Common Stock purchase
rights)(2)
</TABLE>
(1) Calculated pursuant to Rule 457(c) and 457(h) using the average of the
high and low prices reported on the Nasdaq National Market on December 19,
1997.
(2) Prior to the occurrence of certain events, purchase rights for Common
Stock will not be evidenced separately from the Common Stock.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 to register an additional 2,000,000 shares of the
Registrant's common stock, $.02 par value ("Common Stock"), issuable pursuant to
the Registrant's 1996 Stock Option Plan (the "Plan"). The Registrant previously
registered 1,000,000 shares of its Common Stock under the Plan pursuant to a
Registration Statement on Form S-8 (Registration No. 333-39601).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1) under the Securities Act of 1933, as amended
(the "Act"), the documents containing the information specified in this Part
I will be sent or given to participants under the Plan. These documents,
together with the documents incorporated by reference herein pursuant to Item
3 of Part II below, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference herein the following documents
which have been filed with the Securities and Exchange Commission (the
"Commission"):
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1997 (file no. 33-45417) that contains audited financial
statements for the Registrant's fiscal year ended June 30, 1997;
(b) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the end of the
Company's fiscal year ended June 30, 1997; and
(c) the description of Common Stock and purchase rights for shares of
Common Stock associated with Common Stock set forth in the Company's
registration statements on Form 8-A filed with the Commission pursuant to
Section 12 of the Exchange Act and any amendment or report filed for the
purpose of updating such descriptions.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment hereto that
indicates that all securities offered have been sold or that deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document 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 other subsequently filed document that also is incorporated or 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.
<PAGE>
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Registrant is organized under the laws of the State of Delaware.
Section 145 of the Delaware General Corporation Law permits a Delaware
corporation to indemnify any person who is a party (or is threatened to be
made a party) to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of the fact
that he or she is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may similarly indemnify such person in the case of actions or
suits brought by or in the right of the corporation, except (unless otherwise
ordered by the court) that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation.
A corporation may indemnify such person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. Any indemnification shall be made
by the corporation only as authorized in the specific case upon a
determination that indemnification is proper in the circumstances because the
person has met the aforesaid standard of conduct. Such determination shall
be made (1) by a majority vote of the directors who were not parties to the
action, suit, or proceeding, whether or not a quorum, or (2) if there are no
such directors, or if such directors so direct, by independent legal counsel
in a written opinion, or (3) by the stockholders. To the extent that a
director, officer, employee or agent of a corporation has been successful on
the merits, or otherwise, in defense of any action, suit or proceeding
described above, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred in connection therewith. The statute also
provides that it is not exclusive of any other rights to which those seeking
indemnification may be entitled under any by-laws, agreement, vote of
stockholders or disinterested directors or otherwise. The Registrant's
By-Laws provide for the indemnification of its directors and officers to the
fullest extent permitted by law.
Section 102(b)(7) of the Delaware General Corporation Law allows a
Delaware corporation to limit or eliminate the personal liability of
directors to the corporation and its stockholders for monetary damages for
breach of fiduciary duty as a director. However, this provision excludes any
limitation on liability (1) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (2) for acts or omissions not in good
faith or which involved intentional misconduct or a knowing violation of law,
(3) for intentional or negligent payment of unlawful dividends or stock
purchases or redemptions, or (4) for any transaction from which the director
derived an improper benefit. Moreover, while this provision provides
directors with protection against awards for monetary damages for breaches of
their duty of care, it does not eliminate such duty. Accordingly, this
provision will have no effect on the availability of equitable remedies such
as an injunction or rescission based on a director's breach of his or her
duty of care. Finally, this provision applies to an officer of a corporation
only if he or she is a director of such corporation and is acting in his or
her capacity as director, and does not apply to officers of the corporation
who are not directors.
The Registrant's Certificate of Incorporation provides for the limitation
on liability permitted by Section 102(b)(7). The Registrant maintains
directors and officers' liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
2
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
- ------- -----------
4.1 Amended and Restated Certificate of Incorporation of The BISYS Group,
Inc. (incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-8, No. 333-02932).
4.2 Amended and Restated By-laws of The BISYS Group, Inc. (incorporated by
reference to Exhibit 3.2 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended June 30, 1997 filed with the Securities and
Exchange Commission on September 29, 1997).
4.3* The BISYS Group, Inc. 1996 Stock Option Plan, as amended.
4.4 Rights Agreement dated as of May 8, 1997 by and between The BISYS
Group, Inc. and The Bank of New York, as Rights Agent (including the
form of Rights Certificate as Exhibit A) (incorporated by reference
to Exhibit 2.1 of Form 8-A filed on May 8, 1997 with the Securities
and Exchange Commission).
5* Opinion of Shanley & Fisher, P.C.
23.1* Consent of Shanley & Fisher, P.C. (included in Exhibit 5).
23.2* Consent of Coopers & Lybrand L.L.P.
- ---------------------------
* Filed herewith.
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 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 Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
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<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(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
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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 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 Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
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 Township of Little Falls, State of New
Jersey, on the 22nd day of December, 1997.
THE BISYS GROUP, INC.
By: Lynn J. Mangum
--------------------------
Lynn J. Mangum
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Lynn J. Mangum, Robert J. McMullan and Kevin J. Dell, and each of them, with
full power of substitution and full power to act without the other, his or
her true and lawful attorney-in-fact and agent in his or her name, place and
stead, to execute in the name and on behalf of such person, individually and
in each capacity stated below, and to file any and all amendments to this
Registration Statement, including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signatures Title Date
---------- ----- ----
Lynn J. Mangum Director, Chairman of the December 22, 1997
- ----------------------- Board and Chief Executive
Lynn J. Mangum Officer
Robert J. McMullan Executive Vice President, December 22, 1997
- ----------------------- Chief Financial and
Robert J. McMullan Accounting Officer
Robert J. Casale Director December 22, 1997
- -----------------------
Robert J. Casale
Thomas A. Cooper Director December 22, 1997
- -----------------------
Thomas A. Cooper
Jay W. DeDapper Director December 22, 1997
- -----------------------
Jay W. DeDapper
John J. Lyons Director December 22, 1997
- -----------------------
John J. Lyons
5
<PAGE>
Thomas E. McInerney Director December 22, 1997
- -----------------------
Thomas E. McInerney
Neil P. Marcous Director December 22, 1997
- -----------------------
Neil P. Marcous
6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.3 The BISYS Group, Inc. 1996 Stock Option Plan, as amended.
5 Opinion of Shanley & Fisher, P.C.
23.1 Consent of Shanley & Fisher, P.C. (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
7
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Exhibit 4.3
(As amended effective November 13, 1997)
THE BISYS GROUP, INC.
1996 Stock Option Plan
Section 1. Purpose. The purpose of The BISYS Group, Inc. 1996 Stock
Option Plan (the "Plan") is to promote the interests of The BISYS Group,
Inc., a Delaware corporation (the "Company"), and any Subsidiary thereof, and
its stockholders by providing an opportunity to selected employees and
officers of the Company or any Subsidiary thereof as of the date of the
adoption of this Plan or at any time thereafter to purchase Common Stock of
the Company. By encouraging such stock ownership, the Company seeks to
attract, retain and motivate such employees and persons and to encourage such
employees and persons to devote their best efforts to the business and
financial success of the Company. It is intended that this purpose will be
effected by the granting of "non-qualified stock options" and/or "incentive
stock options" to acquire the common stock of the Company. Under this Plan,
a committee of the Board of Directors shall have the authority (in its sole
discretion) to grant "incentive stock options" within the meaning of Section
422A(b) of the Code or "non qualified stock options" as described in Treasury
Regulation Section 1.83-7 or any successor regulation thereto.
Section 2. Definitions. For purposes of this Plan, the following terms
used herein shall have the following meanings, unless a different meaning is
clearly required by the context.
2.1. "Board of Directors" shall mean the Board of Directors of the
Company.
2.2. "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.3. "Committee" shall mean the committee of the Board of Directors
referred to in Section 5 hereof.
2.4. "Common Stock" shall mean the Common Stock, $.02 par value, of the
Company.
2.5. "Employee" shall mean (i) with respect to an ISO, any person
including an officer or employee-director of the Company, who, at the time an
ISO is granted to such person hereunder, is employed on a full-time basis by
the Company or any Subsidiary of the Company, and (ii) with respect to a
Non-Qualified Option, any person employed by or performing services for the
Company or any Subsidiary of the Company, including, without limitation,
employee-directors and officers.
<PAGE>
2.6. "ISO" shall mean an Option granted under the Plan which constitutes
and shall be treated as an "incentive stock option" as defined in Section
422A(b) of the Code.
2.7. "Non-Qualified Option" shall mean an Option granted to a
Participant pursuant to the Plan which is intended to be, and qualifies as,
a "non-qualified stock option" as described in Treasury Regulation Section
1.83-7 and which shall not constitute nor be treated as an ISO.
2.8. "Option" shall mean any ISO or Non-Qualified Option granted to an
Employee pursuant to this Plan.
2.9. "Participant" shall mean any Employee to whom an Option is granted
under this Plan.
2.10. "Parent of the Company" shall have the meaning set forth in
Section 425(e) of the Code.
2.11. "Section 162(m)" shall mean Section 162(m) of the Code including
the rules and regulations promulgated by the Internal Revenue Service
thereunder.
2.12. "Subsidiary of the Company" shall have the meaning set forth in
Section 425(f) of the Code.
Section 3. Eligibility. Options may be granted to any Employee. The
Committee shall have the sole authority to select the persons to whom Options
are to be granted hereunder, and to determine whether a person is to be
granted a Non-Qualified Option or an ISO or any combination thereof. No
person shall have any right to participate in the Plan. Any person selected
by the Committee for participation during any one period will not by virtue
of such participation have the right to be selected as a Participant for any
other period.
Section 4. Common Stock Subject to the Plan.
4.1. The total number of shares of Common Stock for which Options may be
granted under this Plan shall not exceed in the aggregate three million
(3,000,000) shares of Common Stock.
4.2. The shares of Common Stock that may be subject to Options granted
under this Plan may be either authorized and unissued shares or shares
reacquired at any time and now or hereafter held as treasury stock as the
Committee may determine. In the event that any outstanding Option expires or
is terminated for any reason, the shares allocable to the unexercised portion
of such Option may again be subject to an Option granted under this Plan. If
any shares of Common Stock acquired pursuant to the exercise of an Option
shall have been repurchased by the
2
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Company, then such shares shall again become available for issuance pursuant
to the Plan.
4.3. Special ISO Limitations.
(a) The aggregate fair market value (determined as of the date an ISO is
granted) of the shares of Common Stock with respect to which ISOs are
exercisable for the first time by an Employee during any calendar year (under
all Incentive Stock Option Plans of the Company or any Parent or Subsidiary
of the Company) shall not exceed $100,000.
(b) No ISO shall be granted to an Employee who, at the time the ISO is
granted, owns (actually or constructively under the provisions of Section
425(d) of the Code) stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any Parent or
Subsidiary of the Company, unless the option price is at least 110% of the
fair market value (determined as of the time the ISO is granted) of the
shares of Common Stock subject to the ISO and the ISO by its terms is not
exercisable more than five years from the date it is granted.
4.4. Notwithstanding any other provision of the Plan, the provisions of
Sections 4.3(a) and (b) shall not apply, nor shall be construed to apply, to
any Non-Qualified Option granted under the Plan.
Section 5. Administration of the Plan.
5.1 The Plan shall be administered by a committee (the "Committee")
which shall be established by the Board of Directors and shall consist of no
less than two persons. All members of the committee shall be both
"Non-Employee Directors" within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934 and "Outside Directors" as defined for
purposes of Section 162(m). The Committee shall be appointed from time to
time by, and shall serve at the pleasure of, the Board of Directors.
5.2. The Committee shall have the sole authority and discretion to grant
Options under this Plan and, subject to the limitations set forth in Section
6 hereof, to determine the terms and conditions of all Options, including,
without limitation, (i) selecting the Participants who are to be granted
Options hereunder; (ii) designating whether any Option to be granted
hereunder is to be an ISO or a Non-Qualified Option; (iii) establishing the
number of shares of Common Stock that may be issued under each Option; (iv)
determining the time and the conditions subject to which Options may be
exercised in whole or in part; (v) determining the form of the consideration
that may be used to purchase shares of Common Stock upon exercise of any
Option (including the circumstances under which the Company's issued and
outstanding shares of Common Stock may be used by a
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Participant to exercise an Option); (vi) imposing restrictions and/or
conditions with respect to shares of Common Stock acquired upon exercise of
an Option; (vii) determining the circumstances under which shares of Common
Stock acquired upon exercise of any Option may be subject to repurchase by
the Company; (viii) determining the circumstances and conditions subject to
which shares acquired upon exercise of an Option may be sold or otherwise
transferred, including without limitation, the circumstances and conditions
subject to which a proposed sale of shares of Common Stock acquired upon
exercise of an Option may be subject to the Company's right of first refusal
(as well as the terms and conditions of any such right of first refusal);
(ix) establishing a vesting provision for any Option relating to the time (or
the circumstance) when the Option may be exercised by a Participant,
including vesting provisions which may be contingent upon the Company meeting
specified financial goals; (x) accelerating the time when outstanding Options
may be exercised, provided, however, that any ISOs shall be "accelerated"
within the meaning of Section 425(h) of the Code, and (xi) establishing any
other terms, restrictions and/or conditions applicable to any Option not
inconsistent with the provisions of this Plan.
5.3. The Committee shall be authorized to interpret the Plan and may,
from time to time, adopt such rules and regulations, not inconsistent with
the provisions of the Plan, as it may deem advisable to carry out the purpose
of this Plan.
5.4. The interpretation and construction by the Committee of any
provision of the Plan, any Option granted hereunder or any agreement
evidencing any such Option shall be final and conclusive upon all parties.
5.5 Only members of the Committee shall vote on any matter affecting the
administration of the Plan or the granting of Options under the Plan.
5.6. All expenses and liabilities incurred by the Committee in the
administration of the Plan shall be borne by the Company. The Committee may
employ attorneys, consultants, accountants or other persons in connection
with the administration of the Plan. The Company, and its officers and
directors, shall be entitled to rely upon the advice, opinions or valuations
of any such persons. No member of the Board of Directors (or the Committee)
shall be liable for any action, determination or interpretation taken or made
in good faith with respect to the Plan or any Option granted hereunder.
5.7. Notwithstanding anything contained herein to the contrary, the
maximum number of shares of Common Stock for which Options may be granted to
any Employee during any fiscal year of the Company shall not exceed 500,000
shares of Common Stock, less the aggregate number of shares of Common Stock
with respect to
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which stock options, restricted stock awards or stock appreciation rights
have been granted to such Employee during such fiscal year under all other
compensatory plans of the Company.
Section 6. Terms and Conditions of Options.
6.1. ISOs. The terms and conditions of each ISO granted under the Plan
shall be specified by the Committee and shall be set forth in an ISO
agreement between the Company and the Participant in such form as the
Committee shall approve. The terms and conditions of each ISO shall be such
that each ISO issued hereunder shall constitute and shall be treated as an
"incentive stock option" as defined in Section 422A of the Code. The terms
and conditions of any ISO granted hereunder need not be identical to those of
any other ISO granted hereunder.
The terms and conditions of each ISO shall include the following:
(a) The option price shall be fixed by the Committee but shall in no
event be less than 100% (or 110% in the case of an Employee referred to in
Section 4.3(b) hereof) of the fair market value of the shares of Common Stock
subject to the ISO on the date the ISO is granted. For purposes of this
Plan, the fair market value per share of Common Stock as of any day shall
mean the average of the closing prices of sales of shares of Common Stock on
all national securities exchanges on which the Common Stock may at the time
be listed or, if there shall have been no sales on any such day, the average
of the highest bid and lowest asked prices on all such exchanges at the end
of such day, or, if on any day the Common Stock shall not be so listed, the
average of the representative bid and asked prices quoted in the NASDAQ
system as of 3:30 p.m., New York time, on such day, or, if on any day the
Common Stock shall not be quoted in the NASDAQ system, the average of the
high and low bid and asked prices on such day in the over-the-counter market
as reported by National Quotation Bureau Incorporated, or any similar
successor organization. If at any time the Common Stock is not listed on any
national securities exchange or quoted in the NASDAQ system or the over
the-counter market, the fair market value of the shares of Common Stock
subject to an Option on the date the ISO is granted shall be the fair market
value thereof determined in good faith by the Board of Directors.
(b) ISOs, by their terms, shall not be transferable otherwise than by
will or the laws of descent and distribution, and, during an Optionee's
lifetime, an ISO shall be exercisable only by the Optionee.
(c) The Committee shall fix the term of all ISOs granted pursuant to the
Plan (including the date on which such ISO shall
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expire and terminate), provided, however, that such term shall in no event
exceed ten years from the date on which such ISO is granted (or, in the case
of an ISO granted to an Employee referred to in Section 4.3(b) hereof, such
term shall in no event exceed five years from the date on which such ISO is
granted). Each ISO shall be exercisable in such amount or amounts, under such
conditions and at such times or intervals or in such installments as shall be
determined by the Committee in its sole discretion.
(d) In the event that the Company or any Parent or Subsidiary of the
Company is required to withhold any Federal, state or local taxes in respect
of any compensation income realized by the Participant as a result of any
"disqualifying disposition" of any shares of Common Stock acquired upon
exercise of an ISO granted hereunder, the Company shall deduct from any
payments of any kind otherwise due to such Participant the aggregate amount
of such Federal, state or local taxes required to be so withheld or, if such
payments are insufficient to satisfy such Federal, state or local taxes, such
Participant will be required to pay to the Company, or make other
arrangements satisfactory to the Company regarding payment to the Company of,
the aggregate amount of any such taxes. A Participant may use issued and
outstanding Common Stock for the payment of taxes. All matters with respect
to the total amount of taxes to be withheld in respect of any such
compensation income shall be determined by the Committee in its sole
discretion.
(e) In the sole discretion of the Committee the terms and conditions of
any ISO may (but need not) include any of the following provisions:
(i) In the event a Participant shall cease to be employed by the
Company or any Parent or Subsidiary of the Company on a full-time basis for
any reason other than as a result of his death or "disability" (within the
meaning of Section 22(e)(3) of the Code), the unexercised portion of any
ISO held by such Participant at that time may only be exercised within one
month after the date on which the Participant ceased to be so employed, and
only to the extent that the Participant could have otherwise exercised such
ISO as of the date on which he ceased to be so employed.
(ii) In the event a Participant shall cease to be employed by the
Company or any Parent or Subsidiary of the Company on a full-time basis by
reason of his "disability" (within the meaning of Section 22(e)(3) of the
Code), the unexercised portion of any ISO held by such Participant at that
time may only be exercised within one year after the date on which the
Participant ceased to be so employed, and only to the extent that the
Optionee could have otherwise
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exercised such ISO as of the date on which he ceased to be so employed.
(iii) In the event a Participant shall die while in the full-time employ
of the Company or a Parent or Subsidiary of the Company (or within a period
of one month after ceasing to be an Employee for any reason other than such
"disability" or within a period of one year after ceasing to be an Employee
by reason of such "disability"), the unexercised portion of any ISO held by
such Participant at the time of his death may only be exercised within one
year after the date of such Participant's death, and only to the extent
that the Participant could have otherwise exercised such ISO at the time of
his death. In such event, such ISO may be exercised by the executor or
administrator of the Participant's estate or by any person or persons who
shall have acquired the ISO directly from the Participant by bequest or
inheritance.
6.2. Non-Qualified Options. The terms and conditions of each
Non-Qualified Option granted under the Plan shall be specified by the
Committee, in its sole discretion, and shall be set forth in a written option
agreement between the Company and the Participant in such form as the
Committee shall approve. The terms and conditions of each Option will be
such that each Option issued hereunder shall not constitute nor be treated as
an "incentive stock option" as defined in Section 422A of the Code and will
be a "non-qualified stock option" for federal income tax purposes. The terms
and conditions of any Option granted hereunder need not be identical to those
of any other Option granted hereunder.
The terms and conditions of each Non-Qualified Option Agreement shall
include the following:
(a) The option (exercise) price shall be fixed by the Committee and may
be equal to, more than or less than 100% of the fair market value of the
shares of Common Stock subject to the Non-Qualified Option on the date such
Non-Qualified Option is granted.
(b) The Committee shall fix the term of all Non-Qualified Options
granted pursuant to the Plan (including the date on which such Non-Qualified
Option shall expire and terminate). Such term may be more than ten years
from the date on which such Non-Qualified Option is granted. Each
Non-Qualified Option shall be exercisable in such amount or amounts, under
such conditions, and at such times or intervals or in such installments as
shall be determined by the Committee in its sole discretion.
(c) Non-Qualified Options may be transferable or nontransferable
otherwise than by will or the laws of descent and
7
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distribution, in the discretion of the Committee and under such conditions as
the Committee may establish with respect to any Non-Qualified Options.
(d) In the event that the Company is required to withhold any Federal,
state or local taxes in respect of any compensation income realized by the
Participant in respect of a Non-Qualified Option granted hereunder or in
respect of any shares of Common Stock acquired upon exercise of a
Non-Qualified Option, the Company shall deduct from any payments of any kind
otherwise due to such Participant the aggregate amount of such Federal, state
or local taxes required to be so withheld or, if such payments are
insufficient to satisfy such Federal, state or local taxes, or if no such
payments are due or to become due to such Participant, then, such Participant
will be required to pay to the Company, or make other arrangements
satisfactory to the Company regarding payment to the Company of, the
aggregate amount of any such taxes. All matters with respect to the total
amount of taxes to be withheld in respect of any such compensation income
shall be determined by the Committee in its sole discretion.
Section 7. Adjustments. (a) In the event that after the adoption of
the Plan by the Board of Directors, the outstanding shares of the Company's
Common Stock shall be increased or decreased or changed into or exchanged for
a different number or kind of shares of stock or other securities of the
Company or of another corporation through reorganization, merger or
consolidation, recapitalization, reclassification, stock split, split-up,
combination or exchange of shares or declaration of any dividends payable in
Common Stock, the Board of Directors shall appropriately adjust (i) the
number of shares of Common Stock (and the option price per share) subject to
the unexercised portion of any outstanding Option (to the nearest possible
full share), provided, however, that the limitations of Section 425 of the
Code shall apply with respect to adjustments made to ISOs and (ii) the number
of shares of Common Stock for which Options may be granted under this Plan,
as set forth in Section 4.1 hereof, and such adjustments shall be effective
and binding for all purposes of this Plan.
(b) Notwithstanding the foregoing, in the event of (i) any offer to
holders of the Company's Common Stock generally relating to the acquisition
of their shares, including, without limitation, through purchase, merger or
otherwise, or (ii) any transaction generally relating to the acquisition of
substantially all of the assets or business of the Company, the Committee may
make such adjustment as it deems equitable in respect of outstanding Options
including, without limitation, the revision or cancellation of any
outstanding Options. Any such determination by the Committee shall be
effective and binding for all purposes of this Plan.
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Section 8. Effect of the Plan on Employment Relationship.
Neither this Plan nor any Option granted hereunder to a Participant shall
be construed as conferring upon such Participant any right to continue in the
employ of the Company or the service of the Company or any Subsidiary as the
case may be, or limit in any respect the right of the Company or any
Subsidiary to terminate such Participant's employment or other relationship
with the Company or any Subsidiary, as the case may be, at any time.
Section 9. Amendment of the Plan. The Board of Directors may amend the
Plan from time to time as it deems desirable; provided, however, that,
without the approval of the holders of a majority of the outstanding stock of
the Company present or represented and entitled to vote thereon at a meeting,
the Board of Directors may not amend the Plan (i) to increase materially the
benefits accruing to participants under the Plan or the rules and regulations
thereunder, (ii) to increase materially (except for increases due to
adjustments in accordance with Section 8 hereof) the aggregate number of
shares of Common Stock for which Options may be granted hereunder or (iii) to
modify materially the requirements as to eligibility for participation in the
Plan.
Section 10. Termination of the Plan. The Board of Directors may
terminate the Plan at any time. Unless the Plan shall theretofore have been
terminated by the Board of Directors, the Plan shall terminate ten years
after the date of its initial approval by the stockholders of the Company.
No Option may be granted hereunder after termination of the Plan. The
termination or amendment of the Plan shall not alter or impair any rights or
obligations under any Option theretofore granted under the Plan.
Section 11. Effective Date of the Plan. This Plan shall be effective as
of November 14, 1996, the date on which the Plan was approved by the vote of
the holders of a majority of the shares of common stock present or
represented and entitled to vote at the 1996 Annual Meeting of the
Stockholders held on November 14, 1996.
* * * * *
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EXHIBIT 5
SHANLEY & FISHER, P.C.
131 Madison Avenue
Morristown, New Jersey 07962-1979
December 23, 1997
The BISYS Group, Inc.
Overlook at Great Notch
150 Clove Road
Little Falls, New Jersey 07424
Re: The BISYS Group, Inc.
1996 Stock Option Plan, as amended
Gentlemen:
We have acted as special counsel to The BISYS Group, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing
under the Securities Act of 1933, as amended (the "Act"), of a Registration
Statement on Form S-8 (the "Registration Statement") relating to the offer
and sale of up to 2,000,000 shares of the Company's common stock, par value
$.02 per share (the "Shares"), pursuant to the Company's 1996 Stock Option
Plan, as amended (the "Plan").
For purposes of this opinion, we have examined originals or copies,
certified or otherwise, identified to our satisfaction, of the Registration
Statement, together with exhibits filed as a part thereof, and all such other
documents, records, certificates, including certificates of public officials,
and other instruments as we have deemed necessary or appropriate.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing
under the laws of the State of Delaware.
<PAGE>
The BISYS Group, Inc.
December 23, 1997
Page 2
2. The Shares have been duly authorized and, when sold in the manner
and for the consideration contemplated by the Plan and the Registration
Statement, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name therein. By giving the
foregoing consent, we do not admit that we are persons whose consent is
required under Section 7 of the Act.
Very truly yours,
SHANLEY & FISHER, P.C.
<PAGE>
Exhibit 23.2
[LETTERHEAD OF COOPERS & LYBRAND]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
The BISYS Group, Inc. on Form S-8 of our report dated August 15, 1997, on our
audits of the consolidated financial statements and financial statement
schedules of The BISYS Group, Inc., and Subsidiaries as of June 30, 1997 and
1996, and for each of the three years in the period ended June 30, 1997,
which report is included in the Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
New York, New York
December 23, 1997
