UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TSR, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-2635899
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 Oser Avenue 11788
Hauppauge, New York (Zip Code)
(Address of Principal Executive Offices)
TSR, Inc. 1997 Employee Stock Option Plan
(Full title of the plan)
Joseph F. Hughes
President and Chairman of the Board
TSR, Inc.
400 Oser Avenue
Hauppauge, New York 11788
(Name and address of agent for service)
(516) 231-0333
(Telephone Number, Including Area Code, of Agent for Service)
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Copies to:
Steven A. Fishman
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Calculation of Registration Fee
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Proposed maximum Amount of
Amount to be offering price per Proposed maximum registration
Title of securities to be registered registered share(1) aggregate offering price(1) fee(1)
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Shares of Common Stock 800,000 $24.5625 $19,650,000 $5,796.75
Total
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(1) Pursuant to paragraphs (c) and (h) of Rule 457 of the Securities Act of
1933, as amended (the "Securities Act"), the proposed maximum offering
price per share of such shares of beneficial interest is estimated
solely for the purpose of determining the registration fee and is based
upon the average of the high and low prices per share of the
Registrant's shares of beneficial interest reported on the American
Stock Exchange on March 5, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this
Item will be sent or given to each participant who has been granted options
("Options") for the purchase of shares of beneficial interest (the "Shares") of
TSR, Inc., a Delaware business trust (the "Registrant") under the TSR, Inc. 1997
Employee Stock Option Plan (the "Plan"), and, in accordance with the rules and
regulations of the Securities and Exchange Commission (the "Commission"), are
not being filed with, or included in, this Registration Statement on Form S-8
(the "Registration Statement").
Item 2. Registration Information and Employee Plan Annual Information
The documents containing the information specified in this
Item will be sent or given to employees who have been granted Options under the
Plan and, in accordance with the rules and regulations of the Commission, are
not being filed with, or included in, this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been heretofore filed with
the Commission by the Registrant, are incorporated by reference in this
Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1997 (File No. 08656), including any documents or portions thereof
incorporated by reference therein;
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended August 31, 1997 and November 30, 1997;
3. The Company's Definitive Proxy Statement dated September 29, 1997
for the Annual Meeting of Shareholders held on October 22, 1997 (File No.
08656), including any documents or portions thereof incorporated by reference
therein;
4. All other documents filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of this offering.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated
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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 which 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.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Certificate of Incorporation and By-Laws of the Company provide
that the Company shall indemnify any person to the full extent permitted by the
Delaware General Corporation Law (the "GCL"). Section 145 of the GCL, relating
to indemnification, is hereby incorporated herein by reference.
In accordance with Section 102(a)(7) of the GCL, the Certificate of
Incorporation of the Company eliminates the personal liability of directors to
the Company or its shareholders for monetary damages for breach of fiduciary
duty as a director with certain limited exceptions set forth in Section
102(a)(7).
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 TSR, Inc. 1997 Employee Stock Option Plan (filed as Exhibit 10.2
to the Registrant's Annual Report on Form 10-K filed on August 29,
1998 and incorporated herein by reference).
5.1 Opinion of Battle Fowler LLP regarding the legality of the
securities being registered.
23.1 Consent of Battle Fowler LLP (Included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors.
Item 9. Undertakings.
(a) The 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;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
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) (ss.230.424(b) of this chapter) 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;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in 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 hereby which remain
unsold at the termination of the offering.
(b) The 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 that is incorporated by reference in this 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 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 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 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.
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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 New York, State of New York, on this 26th day of
February, 1998.
TSR, INC.
By: s/ Joseph F. Hughes
--------------------------
Joseph F. Hughes
President, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below under the heading "Signature" constitutes and appoints Joseph F.
Hughes, or John G. Sharkey. his true and lawful attorney-in-fact and agent with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities to sign any or all 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, each acting alone,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C> <C>
s/ Joseph F. Hughes President, Chairman of 2/26/98
Name: Joseph F. Hughes the Board and Chief Executive
Officer (principal
executive officer)
s/ John G. Sharkey Vice President, Finance 2/26/98
Name: John G. Sharkey (Chief Financial and
Accounting Officer)
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Signature Title Date
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s/ Ernest G. Bago Director 2/26/98
Name: Ernest G. Bago
s/ John H. Hochuli, Jr. Director 2/27/98
Name: John H. Hochuli, Jr.
s/ Michael P. Dowd Director 2/26/98
Name: Michael P. Dowd
s/ James J. Hill Director 2/26/98
Name: James J. Hill
</TABLE>
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Exhibit 5.1
BATTLE FOWLER LLP
A LIMITED LIABILITY PARTNERSHIP
75 East 55th Street
New York, New York 10022
(212) 856-7000
(212) 856-7000
(212) 339-9150
March 5, 1998
Board of Directors
TSR, Inc.
400 Oser Avenue
Hauppauge, New York 11788
Re: TSR, Inc.
1997 Employee Stock Option Plan
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel for TSR, Inc., a Delaware corporation (the
"Company"), in connection with the preparation of the registration statement on
Form S-8, and any amendments thereto (the "Registration Statement"), as filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), for the registration under the Securities Act of
up to 800,000 shares (the "Shares") of the Company's common stock, par value
$0.01 per share (the "Common Stock") (the "Shares") to be issued pursuant to the
1997 Employee Stock Option Plan (the "Plan"). Capitalized terms used and not
defined in this opinion have the meanings ascribed to them in the Registration
Statement. You have requested that we furnish our opinion as to matters
hereinafter set forth.
In rendering this opinion, we have relied upon, among other things, our
examination of such records of the Company, including without limitation, the
Company's Certificate of Incorporation as amended, and the Company's Bylaws, as
amended, resolutions of the Board of Directors and certificates of its officers
and of public officials as we have deemed necessary for the purpose of the
opinion expressed below.
In addition, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted
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to us as certified or photostatic copies. As to various questions of fact
material to this opinion, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments furnished to us by the Company.
We do not express any opinion as to the laws of states or jurisdictions
other than the laws of the State of New York, the Delaware General Corporation
Law and the federal law of the United States. No opinion is expressed as to the
effect that the law of any other jurisdiction may have upon the subject matter
of the opinion expressed herein under conflicts of law principles, rules and
regulations or otherwise.
Based on and subject to the foregoing, we are of the opinion that: the
Shares offered by the Company pursuant to the Registration Statement, when
issued and paid for in accordance with the Plan, will be duly and validly
authorized and issued and will be fully paid and nonassessable.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In giving this
consent, we do not admit that we are within the category of persons whose
consent is required by Section 7 of the Securities Act of 1933 or the rules and
regulations promulgated thereunder by the Securities and Exchange Commission.
Very truly yours,
Battle Fowler LLP
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Exhibit 23.2
Consent of Independent Auditors
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The Board of Directors
and Stockholders
TSR, Inc.:
We consent to the use of our report incorporated by reference herein in the
Registration Statement on Form S-8.
KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Jericho, New York
March 4, 1998
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