As filed with the Securities and Exchange Commission on February 17, 2004
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE BISYS GROUP, INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-3532663
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
90 Park Avenue
New York, New York 10016
(Address of Principal Executive Offices) (Zip Code)
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THE BISYS GROUP, INC.
2003 EMPLOYEE STOCK PURCHASE PLAN
2004 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
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KEVIN J. DELL, ESQ.
Executive Vice President, General Counsel and Secretary
The BISYS Group, Inc.
90 Park Avenue
New York, New York 10016
(Name and address of agent for service)
(212) 907-6000
(Telephone number, including area code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered (1) share (2) price (2) registration fee
------------------- ------------- ------------------ ------------------ ----------------
Common Stock, $.02 par value 1,200,000 $18.16 $21,792,000 $2,762
(including Common Stock purchase Shares
rights) (3)
(1) This Registration Statement covers 400,000 shares of Common Stock
issuable pursuant to The BISYS Group, Inc. 2003 Employee Stock Purchase
Plan ("2003 Plan") and 800,000 shares of Common Stock issuable pursuant
to The BISYS Group, Inc. 2004 Employee Stock Purchase Plan ("2004
Plan"). This Registration Statement also covers any additional shares
of Common Stock which may become issuable under the 2003 Plan and the
2004 Plan by reason of any stock dividend, stock split or similar
transaction.
(2) Calculated pursuant to Rule 457(c) and 457(h) based upon a price of
$18.16 per share, which was the average of the high and low prices of
the Common Stock reported on the New York Stock Exchange on February
12, 2004.
(3) Prior to the occurrence of certain events, purchase rights for Common
Stock will not be evidenced separately from the Common Stock.
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 to register 400,000 shares of the Registrant's common
stock, $.02 par value ("Common Stock"), issuable pursuant to the Registrant's
2003 Employee Stock Purchase Plan and 800,000 shares of Common Stock issuable
pursuant to the Registrant's 2004 Employee Stock Purchase Plan (collectively,
the "Plans").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Pursuant to Rule 428(b)(1) under the Securities Act of 1933 (the
"Act"), the documents containing the information specified in this Part I will
be sent or given to participants under the Plans. 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
"SEC"):
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 2003, filed with the SEC on September 19, 2004 (SEC File No.
0-19922).
(b) the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 2003, filed with the SEC on November 12, 2003 (SEC
File No. 0-19922);
(c) the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 2003, filed with the SEC on January 29, 2004 (SEC
File No. 0-19922); and
(d) the description of Common Stock and purchase rights for shares of
Common Stock attached to the Common Stock described in the Registrant's
registration statement on Form 8-A filed on February 27, 2002 with the SEC, as
amended on Form 8-A/A filed on September 26, 2002 with the SEC, pursuant to
Section 12 of the Securities Exchange Act of 1934, and any amendment or report
filed for the purpose of updating those 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.
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.
3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
4.1 Amended and Restated Certificate of Incorporation of The BISYS Group, Inc., as amended by
Certificate of Amendment to Amended and Restated Certificate of Incorporation of The BISYS
Group, Inc., incorporated by reference to Exhibit 3.1 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended December 31, 2001, filed with the Securities and Exchange
Commission on February 12, 2002 (SEC File No. 0-19922).
4.2* Amended and Restated By-laws of The BISYS Group, Inc.
4.3 The BISYS Group, Inc. 2003 Employee Stock Purchase Plan, incorporated by reference to Exhibit A
to the Registrant's proxy statement for its 2002 Annual Meeting of Stockholders, filed with the
Securities and Exchange Commission on October 17, 2002 (SEC File No. 0-19922).
4.4 The BISYS Group, Inc. 2004 Employee Stock Purchase Plan (incorporated by reference to Exhibit B
to the Registrant's proxy statement for its 2003 Annual Meeting of Stockholders, filed with the
Securities and Exchange Commission on October 15, 2003 (SEC File No. 0-19922).
4.5 Rights Agreement dated as of May 8, 1997 (the "Rights Agreement") 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 to the Registrant's Form 8-A, filed with the
Securities and Exchange Commission on May 8, 1997.
4.6 Amendment to the Rights Agreement dated as of August 15, 2002, incorporated by reference to
Exhibit 4.2 of Form 8-A/A, filed with the Securities and Exchange Commission on September 26,
2002.
5* Opinion of Drinker Biddle & Reath LLP
23.1* Consent of Drinker Biddle & Reath LLP (included in Exhibit 5).
23.2* Consent of PricewaterhouseCoopers LLP
24* Powers of Attorney
- -------
* 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:
4
(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;
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.
(h) 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.
5
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 New York, New York, on the 16th day of February, 2004.
THE BISYS GROUP, INC.
By: /s/ Russell P. Fradin
-------------------
Russell P. Fradin
President and Chief Executive Officer
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
---------- ----- ----
/s/ Russell P. Fradin Director, President and February 16, 2004
- ----------------------------- Chief Executive Officer
Russell P. Fradin (principal executive officer)
/s/ James L. Fox Executive Vice President and February 16, 2004
- ----------------------------- Chief Financial Officer
James L. Fox (principal accounting and
financial officer)
*
- -----------------------------
Denis A. Bovin Director February 16, 2004
*
- -----------------------------
Robert J. Casale Director February 16, 2004
*
- -----------------------------
Thomas A. Cooper Director February 16, 2004
*
- -----------------------------
Lynn J. Mangum Director and Chairman February 16, 2004
*
- -----------------------------
Paula G. McInerney Director February 16, 2004
*
- -----------------------------
Thomas E. McInerney Director February 16, 2004
6
*
- -----------------------------
Joseph J. Melone Director February 16, 2004
* Russell P. Fradin hereby signs this Registration Statement on Form S-8 on
behalf of each of the indicated persons for whom he is attorney-in-fact on
February 16, 2004 pursuant to a power of attorney filed herewith.
By:/s/ Russell P. Fradin
------------------------
Russell P. Fradin
Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.2 Amended and Restated By-laws of The BISYS Group, Inc.
5 Opinion of Drinker Biddle & Reath LLP
23.1 Consent of Drinker Biddle & Reath LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney
8