-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Dgeyr8QjCStgEm2rWgUMQ9Ff0XD+yLJS++VxR+I9DK2jbNS9D0Ydg0j+MZctGH6v PNQh3TXfZemEyDIf42u7ag== 0000927356-00-000139.txt : 20000203 0000927356-00-000139.hdr.sgml : 20000203 ACCESSION NUMBER: 0000927356-00-000139 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000131 EFFECTIVENESS DATE: 20000131 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BI INC CENTRAL INDEX KEY: 0000716629 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS BUSINESS SERVICES [7380] IRS NUMBER: 840769926 STATE OF INCORPORATION: CO FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-95707 FILM NUMBER: 517069 BUSINESS ADDRESS: STREET 1: 6400 LOOKOUT RD CITY: BOULDER STATE: CO ZIP: 80301 BUSINESS PHONE: 3032181000 MAIL ADDRESS: STREET 1: 6400 LOOKOUT RD CITY: BOULDER STATE: CO ZIP: 80301 S-8 1 FORM S-8 Registration No. 333- As filed with the Securities and Exchange Commission on January 28, 2000. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BI INCORPORATED (Exact name of registrant as specified in its charter) Colorado 84-0769926 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 6400 Lookout Road Boulder, Colorado 80301 (Address, including zip code of Principal Executive Offices) BI Incorporated 1999 Stock Option Plan (Full Title of the Plans) David J. Hunter, President BI Incorporated 6400 Lookout Road Boulder, Colorado 80301 (303) 530-2911 (Name, address and telephone number, including area code, of agent for service) ________________________________________ CALCULATION OF REGISTRATION FEE
================================================================================================================= Title of each class of Amount to be Proposed maximum Proposed maximum Amount of securities to be registered offering price per aggregate offering registration registered Share(1) price fee - ----------------------------------------------------------------------------------------------------------------- Common Stock, no par value per share 481,375 shares $8.06 $3,879,883 $1,025 =================================================================================================================
(1) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) based upon the average of the high and low selling prices reported on the Nasdaq National Market on January 25, 2000. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents which have been filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference in this Registration Statement: (a) the Registrant's latest Annual Report filed pursuant to Section 13(a) or 15(d) of the Exchange Act; (b) all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to in (a) above; and (c) the description of the Registrant's Common Stock contained in the Registrant's Registration Statement filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as the "Incorporated Documents"). Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for all purposes to the extent that a statement contained in this Registration Statement or in any other subsequently filed Incorporated Document or in any prospectus or prospectus supplement modifies or supersedes such 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 Company's Bylaws provide that the Board of Directors has the authority to indemnify any director or officer for expenses incurred in any threatened, pending or completed action, suit or investigation consistent with the laws of the State of Colorado. Section 7-3-101.5 of the Colorado Corporation Code provides that a corporation may indemnify directors, officers, employees, fiduciaries or agents in connection with any action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in the best interest of the corporation. However, no indemnification shall be made in respect of any claim, issue or matter as to which such person has been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless the court determines that such person is entitled to indemnification. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 BI Incorporated 1999 Stock Option Plan. 5.1 Opinion of Ireland, Stapleton, Pryor & Pascoe, P.C. regarding the legality of the Common Stock being registered. 23.1 Consent of Independent Accountants. 23.2 Consent of Independent Accountants. 23.3 Consent of Ireland, Stapleton, Pryor & Pascoe, P.C. (included in the opinion filed as Exhibit 5.1). 25.1 Power of Attorney (included in Part II of this Registration Statement under the caption "Signatures"). Item 9. Undertakings. The undersigned registrant hereby undertakes: a. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement 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. b. That, for the purpose of determining any liability under the Securities Act of 1933, each 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. c. 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. d. 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 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. e. To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. f. 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. 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 Boulder, State of Colorado, on January 28, 2000. BI INCORPORATED By: /s/ David J. Hunter ------------------------ David J. Hunter, President Power of Attorney The undersigned directors and/or officers of the Registrant, by virtue of their signatures to this Registration Statement appearing below, hereby constitute and appoint David J. Hunter or Jacqueline A. Chamberlin, or either of them, with full power of substitution, as attorney-in-fact in their names, places and steads to execute any and all amendments to this Registration Statement in the capacities set forth opposite their names and hereby ratify all that said attorneys-in-fact may do by virtue hereof. 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/ David J. Hunter President, Chief Executive Officer January 28, 2000 - ------------------------------- David J. Hunter and Director (Principal Executive Officer) /s/ Jacqueline A. Chamberlin Vice President of Finance (Principal January 28, 2000 - ------------------------------- Jacqueline A. Chamberlin Financial and Accounting Officer) /s/ Jeremy N. Kendall Chairman January 28, 2000 - ------------------------------- Jeremy N. Kendall /s/ William E. Coleman Vice Chairman January 28, 2000 - ------------------------------- William E. Coleman /s/ Mckinley C. Edwards, Jr. Director January 28, 2000 - ------------------------------- Mckinley C. Edwards, Jr. /s/ Beverly J. Haddon Director January 28, 2000 - ------------------------------- Beverly J. Haddon /s/ Perry M. Johnson Director January 28, 2000 - ------------------------------- Perry M. Johnson Director - ------------------------------- Barry J. Nidorf /s/ Byam K. Stevens, Jr. Director January 28, 2000 - ------------------------------- Byam K. Stevens, Jr.
EX-4.1 2 BI INCORPORATED 1999 STOCK OPTION PLAN Exhibit 4.1 BI INCORPORATED 1999 STOCK OPTION PLAN 1. Purpose. The purpose of this 1999 Stock Option Plan (the "Plan") ------- is to grant to employees, consultants and directors, options to purchase common stock (the "Common Stock") of BI Incorporated, a Colorado corporation (the "Corporation"), so that they may have the opportunity to participate in the growth of the Corporation and to provide them with an increased incentive to promote the interests of the Corporation. The options granted under the Plan are intended to qualify as incentive stock options under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), unless specifically designated as non-qualified stock options. 2. Effectiveness of the Plan; Termination. This Plan shall become -------------------------------------- effective at such time as it has received the required approval of shareholders of the Corporation as contemplated by Section 422 of the Code (the "Effective Date"). No options shall be granted under the Plan prior to the Effective Date. The Plan shall terminate at the earlier of ten years from the Effective Date or at such earlier time as the Board of Directors determines to terminate it. 3. Eligible Persons. Employees, directors and consultants of the ---------------- Corporation or of any parent or subsidiary of the Corporation shall be eligible to be granted options under this Plan, except that incentive stock options may be granted only to employees. "Parent" and "subsidiary" shall have the meanings set forth in Section 424 of the Code. 4. Stock Subject to Plan. --------------------- (a) The stock issuable under the Plan shall be shares of authorized but unissued or reacquired Common Stock, including shares repurchased by the Corporation on the open market. The maximum number of shares of Common Stock initially reserved for issuance over the term of the Plan shall not exceed 300,000 shares. Upon the Effective Date of the Plan, all shares of Common Stock reserved but not subject to outstanding options under the BI Incorporated 1996 Stock Option Plan shall become part of the shares of Common Stock reserved for options to be granted under this Plan (in addition to the 300,000 shares reserved above) and no further options shall be granted under the BI Incorporated 1996 Stock Option Plan. In addition, the share reserve will automatically be increased on the first day of each fiscal year, beginning with the fiscal year ending June 30, 2000, by an amount equal to two percent (2%) of the total number of shares of Common Stock outstanding on the last day of the immediately preceding fiscal year, or such lesser number of shares as is later ratified by the Board at their first meeting or action in the beginning of such new fiscal year; provided, that in no event shall any such annual increase exceed 200,000 shares. (b) Shares of Common Stock reserved for issuance pursuant to outstanding options shall be available for subsequent issuance under the Plan to the extent those options expire or terminate for any reason prior to exercise in full. In the event the exercise price of an option under the Plan be paid with shares of Common Stock, or should shares of Common Stock otherwise issuable under the Plan be withheld by the Corporation in satisfaction of the withholding taxes incurred in connection with the exercise of an option, then the number of shares of Common Stock available for issuance under the Plan shall be reduced by the gross number of shares for which the option is exercised or which vest under the stock issuance, and not by the net number of shares of Common Stock issued to the holder exercising such option. (c) Appropriate adjustments shall be made to the number and type of shares reserved under the Plan, including the number and type of shares to be added annually to the Plan as provided for in Paragraph 4(a) above, upon the occurrence of any of the events describe in Section 10 below. Any such adjustments as determined by the Committee shall be final, binding and conclusive. 4. Administration. -------------- (a) The Plan shall be administered by a committee of at least two non-employee members of the Board of Directors of the Corporation (the "Board") appointed by the Board and serving at the Board's pleasure (the "Committee"). The Board may increase the size of the Committee, appoint additional members, remove members (with or without cause), appoint new members, fill vacancies however caused, or remove all members of the Committee and thereafter directly administer the Plan. As used herein, the term Board shall also mean the Committee. (b) The Board may from time to time adopt such rules and regulations as it may deem advisable for the administration of the Plan, and may alter, amend, or rescind any such rules and regulations in its discretion. The Board shall have the power to interpret or amend or discontinue the Plan, except that any amendment which, under state or federal law or the applicable rules of any exchange or trading system on which the Common Stock is traded, would require shareholder approval shall take effect only upon such approval; and further provided that without the written consent of an optionee, no amendment or discontinuance of the Plan shall alter or impair any option previously granted to him under the Plan, subject to any provisions otherwise in the Plan. All decisions made by the Board in the administration and interpretation of the Plan shall be binding and conclusive for all purposes. No member of the Board shall be liable for any action taken or decisions made by him or her in good faith with respect to the Plan or any options granted under it. 5. Price, Terms and Conditions of Options. -------------------------------------- (a) Options shall be evidenced by a written Incentive Stock Option Agreement or Non-Qualified Stock Option Agreement, as appropriate, in the form approved from time to time by the Board. The type of option, the number of shares which may be purchased under such option, the exercisability of such option, the option's expiration date and the purchase price per share, shall be designated by the Board at the time the option is granted. (b) The purchase price per share of any option granted hereunder shall in no event be less than 100% of the fair market value of each share at the time the option is granted; provided, however, that incentive stock options may not be granted to any holder of the voting rights of 10% or more of the total combined voting power of all classes of stock of the Corporation at time of grant, unless the purchase price is at least 110% of the fair market value of the shares at the time of grant. "Fair market value" shall be determined as set forth in Section 9 below. No incentive stock options shall be granted under the Plan to any employee where the aggregate fair market value (determined at the time the option is granted) of the stock with respect to which incentive stock options are exercisable for the first time by such employee during any calendar year (under all such plans of the Corporation and its parent and subsidiary corporations) shall exceed $100,000; provided that non-qualified stock options granted under the Plan may exceed these limits. All options shall be exercisable even though there may be outstanding any other option(s) which was or were granted before the granting of such option. The Board may impose on any option any additional terms and conditions which it deems advisable and which are not inconsistent with the Plan. 6. Transferability. Unless otherwise determined by the Board, an --------------- option granted under the Plan shall not be transferable by the individual to whom it is granted otherwise than by will or the laws of descent and distribution, and shall be exercisable, during the lifetime of such individual, only by him; provided, however, that if such individual becomes legally disabled, his legal representative may exercise the option on his behalf. 7. Exercise of Option. ------------------ (a) Exercise of an option shall be accomplished by delivery to the Corporation before the option's expiration of written notice, signed by the holder of the option, specifying the number of shares with respect to which the option is exercised, the type of option being exercised, and by full payment of the purchase price for the shares. The purchase price may, at the Corporation's discretion, be paid by assignment to the Corporation of outstanding shares of Common Stock of the Corporation owned by the optionee for at least six (6) months prior to the date of exercise and having a fair market value (as determined pursuant to Section 9 below) equal to the purchase price or that portion thereof being paid in outstanding stock. The Corporation may issue a certificate which reflects the net number of shares issuable after payment of the exercise price in already owned Common Stock, so that the previously owned certificate need not actually be tendered. An option may not be exercised for a fraction of a share of Common Stock. At the Corporation's request, the notice of exercise delivered to it shall contain a representation that the shares are being purchased for investment only and not for resale or distribution. Within a reasonable time after receipt of the properly executed notice of exercise, the Corporation shall cause to be issued and delivered to the holder of the option a certificate for the number of shares of Common Stock being purchased; provided, however, that the Corporation may in its discretion allow the optionee to elect to pay any withholding taxes payable upon exercise of a non-qualified stock option, in whole or in part, by transferring to the Corporation shares of Common Stock of the Corporation owned by him or by being credited by the Corporation for shares he has a right to acquire in the option being exercised. (b) No person shall have any rights as a stockholder with respect to any shares covered by an option until the date of the issuance of a stock certificate(s) for the shares for which the option has been exercised. No adjustments shall be made for dividends or distributions or other rights for which the record date is prior to the date such stock certificate(s) are issued, except as provided in Section 10. Nothing in this Plan or in any option agreement shall confer upon any optionee any rights to continue in the employ of the Corporation or shall affect the Corporation's ability to terminate the optionee's employment at any time. 8. Expiration of Option. -------------------- (a) Each option granted under the Plan shall expire on the earlier of (i) the date set forth in the Option Agreement for such optionee; (ii) no later than ten (10) years from the date the option is granted, provided that no incentive stock option granted to a 10% shareholder (as described in Section 5, above) shall be exercisable after the expiration of five (5) years from the date of grant; or (iii) in the case of an incentive stock option, three (3) months following the termination, for any reason other than death or disability, of the employment by the Corporation, or by its parent or subsidiary, of the employee to whom the option is granted. (b) Unless earlier terminated pursuant to this Section 8, each incentive stock option granted under the Plan, shall expire one (1) year following the termination on account of death or disability of the employment by or services for the Corporation, or by or for its parent or subsidiary, of the employee to whom the option is granted. In the event of the termination of employment by the Corporation of an optionee on account of his or her death or disability, the optionee shall for purposes of the foregoing requirement be considered to have completed the next full vesting period of employment with respect to the vesting period in which his or her death or disability occurs. 9. Definition of Fair Market Value. For the purposes of this Plan, ------------------------------- "fair market value" shall mean either the exercise price per share established in the discretion of the Board of Directors or, so long as the Corporation's stock is publicly traded, the closing price per share of Common Stock of the Corporation on the last trading day preceding the date of grant. 10. Stock Splits, Dissolutions, Mergers, Etc. ----------------------------------------- (a) In case of any stock split, stock dividend or similar transaction which increases or decreases the number of outstanding shares of the Corporation's Common Stock, appropriate adjustment will be made to both the number of shares which may be purchased under the Plan and the number and exercise price per share of Common Stock which may be purchased under any outstanding options. (b) In the event of the proposed dissolution or liquidation of the Company, all options will be deemed terminated immediately prior to the consummation of such proposed action, unless otherwise provided by the Board. The Board may, in the exercise of its sole discretion in such instances, give each Optionee the right to exercise his option prior to the consummation of such action as to all or any part of the Common Stock subject to such option, including shares as to which the option would not otherwise be exercisable. (c) In the case of any merger, sale of all or substantially all of the assets of the Corporation of other transaction which results in the replacement of the Corporation's Common Stock with the stock of another corporation, any option granted under the Plan shall accelerate and become immediately exercisable in full as of the day immediately preceding the closing day of such event, unless there shall have been a binding agreement entered into for the assumption or replacement of any options with comparable options to purchase the stock of such other corporation. ADOPTED BY THE BOARD OF DIRECTORS: August 4, 1999 EX-5.1 3 OPINION OF IRELAND, STAPLETON, PRYOR & PASCOE, PC Exhibit 5.1 January 28, 2000 BI Incorporated 6400 Lookout Road Boulder, Colorado 80301 Ladies and Gentlemen: We are counsel to BI Incorporated, a Colorado corporation (the "Company"), and in such capacity have examined the Company's Registration Statement on Form S-8 (the "Registration Statement"), being filed with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of the offering of a maximum of 481,375 shares (the "Shares") of the Company's Common Stock, to be issued pursuant to the Company's 1999 Stock Option Plan (the "Plan"). We are familiar with the proceedings undertaken by the Company in connection with the authorization, reservation and registration of the Shares. Additionally, we have examined such questions of law and fact as we have considered necessary or appropriate for purposes of this opinion. Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance, delivery and payment therefor as contemplated by the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to your filing this opinion as an exhibit to the Registration Statement. Very truly yours, IRELAND, STAPLETON, PRYOR & PASCOE, P.C. By: /s/ John G. Lewis --------------------------------- John G. Lewis, Vice President EX-23.1 4 CONSENT OF PRICEWATERHOUSE COOPERS LLP Exhibit 23.1 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 14, 1998, appearing on page F2 of the BI Incorporated Annual Report on Form 10-K for the year ended June 30, 1999. PRICEWATERHOUSECOOPERS LLP Broomfield, Colorado January 28, 2000 EX-23.2 5 CONSENT OF ARTHUR ANDERSEN LLP Exhibit 23.2 Consent of Independent Accountants As independent public accountants, we hereby consent to the incorporation by reference in this Form S-8 of our report dated August 26, 1999, appearing on page F-1 of the BI Incorporated Annual Report on Form 10-K for the year ended June 30, 1999. ARTHUR ANDERSEN LLP Denver, Colorado January 28, 2000 -----END PRIVACY-ENHANCED MESSAGE-----