As filed with the Securities and Registration Number 33-____________
Exchange on June 26, 2001.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
JACK HENRY & ASSOCIATES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 43-1128385
(State or other jurisdiction of (I.R.S. Employer)
incorporation or organization) Identification No.)
663 West Highway 60, P.O. Box 807
Monett, Missouri 65708
(417) 235-6652
(Address, including zip code and telephone number, including area code,
of Registrant's principal executive offices)
------------------------
Jack Henry & Associates, Inc. 401(k) Employee Stock Ownership Plan and Trust
(the "Plan")
(Full title of the plan)
------------------------
Michael E. Henry, Chairman of the Board and Chief Executive Officer
JACK HENRY & ASSOCIATES, INC.
663 Highway 60, P.O. Box 807,
Monett, Missouri 65708
(417) 235-6652
(Name, address, including zip code and telephone number,
including area code, of agent for service)
Copies to:
Robert T. Schendel, Esq. Mr. Kevin D. Williams
Shughart, Thomson & Kilroy, P.C. Chief Financial Officer
Twelve Wyandotte Plaza Jack Henry & Associates, Inc.
120 West 12th Street, Suite 1600 663 West Highway 60, P.O. Box 807
Kansas City, Missouri 64105 Monett, Missouri 65708
CALCULATION OF REGISTRATION FEE
=========================================================================
Proposed Proposed
maximum Maximum
Title of Amount offering aggregate Amount of
securities to to be price per offering registration
be registered registered share (1) price(1) on fee
-------------------------------------------------------------------------
Common Stock, 1,000,000 $28.76 $28,760,000 $7,190
$.01 par value shares
=========================================================================
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating
the registration fee on the basis of the average of the high and low
price of the Registrant's common stock on the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") on
June 25, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by Jack Henry & Associates, Inc.
("Registrant") with the Securities and Exchange Commission are incorporated
by reference in this Registration Statement:
a. The Registrant's latest annual report on Form 10-K filed September
27, 2000, under the Securities Exchange Act of 1934 (the "Exchange
Act").
b. The Plan's Annual Report on Form 11-K for the fiscal year ended
December 31, 2000, filed on June 26, 2001.
c. All other reports filed by the Registrant pursuant to sections
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.
d. The description of the Registrant's common stock $.01 par value
per share (the "Common Stock") which is contained in the
registrant's registration statements filed under Section 12 of the
Act, including any amendments or reports filed for the purpose of
updating such descriptions.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Act, prior to the filing of a post-
effective amendment to the registration statement which indicates that all
of the shares of common stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated
by reference in the registration statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
The Registrant's Common Stock has been registered pursuant to Section
12 of the Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
permits a corporation to indemnify any of its directors or officers who was
or is a party or is threatened to be made a party to any third party
proceeding by reason of the fact that such person is or was a director or
officer of the corporation, 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 such person acted in good faith and in a manner such person 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 that such person's conduct was unlawful. In a derivative
action, i.e., one by or in the right of a corporation, the corporation is
permitted to indemnify any of its directors or officers against expenses
(including attorneys' fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, except
that no indemnification shall be made if such person shall have been
adjudged liable to the corporation, unless and only to the extent that the
court in which such action or suit was brought shall determine upon
application that such person is fairly and reasonably entitled to indemnity
for such expenses despite such adjudication of liability.
Article Eleventh of the Registrant's Certificate of Incorporation
provides for indemnification of directors and officers of the Registrant
against liability they may incur in their capacities as such to the fullest
extent permitted by the DGCL.
The Registrant has entered into indemnification agreements with its
directors and officers. Pursuant to such agreements, the Registrant will,
to the extent permitted by applicable law, indemnify such persons against
all expenses incurred in connection with the defense or settlement of any
proceeding brought against them by reason of the fact that they were
directors or officers of the Registrant.
The Registrant has in effect directors' and officers' liability
insurance with a limit of $1,000,000 and fiduciary liability insurance with
a limit of $1,000,000. The fiduciary liability insurance covers actions of
directors and officers as well as other employees with fiduciary
responsibilities under ERISA.
Item 7. Exemption from Registration Claimed.
Not applicable. No restricted securities have been or will be
reoffered or resold pursuant to this Registration Statement.
Item 8. Exhibits.
The exhibits to the registration statement are listed in the Exhibit
Index elsewhere herein.
Item 9. Undertakings.
(1) 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:
(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;
(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 paragraph (a)(1)(i) and
(a)(1)(ii) shall 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(b) 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.
(c) To remove registration by means of a post-effective amendment
any of the securities being registered which remain unsold at
the termination of the offering.
(2) 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 Section 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 herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) The undersigned registrant hereby undertakes 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 Securities Exchange Act of 1934; and,
where interim financial information required to be presented by
Article 3 of Regulation S-X is 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.
(4) 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 provisions
described in Item 6, 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 proceedings) 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 Monett, State of Missouri, on
June 26, 2001.
JACK HENRY & ASSOCIATES, INC.,
Registrant
By /s/ Michael E. Henry
-----------------------------------------
Michael E. Henry, Chief Executive Officer
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 date indicated.
The undersigned directors and officers of Jack Henry & Associates, Inc.
each hereby constitute Michael E. Henry and Terry W. Thompson, and each of
them, as our true and lawful attorneys with full power to sign any and all
amendments to this Registration Statement in our names and in the capacities
indicated below to enable Jack Henry & Associates, Inc. to comply with the
requirements of the Securities Act of 1933, as amended, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming
our signatures as they may be signed by said attorneys, or any of them, on
any and all amendments to this Registration Statement.
/s/ Michael E. Henry Chairman of the Board, Chief June 26, 2001
-------------------- Executive Officer and
Michael E. Henry Director
/s/ Terry W. Thompson President, Chief Operating June 26, 2001
--------------------- Officer
Terry W. Thompson
/s/ Kevin D. Williams Chief Financial Officer June 26, 2001
--------------------- (Principal Accounting Officer)
Kevin D. Williams
/s/ John W. Henry Vice Chairman, Senior Vice June 26, 2001
--------------------- President and Director
John W. Henry
/s/ Jerry D. Hall Executive Vice President and June 26, 2001
--------------------- Director
Jerry D. Hall
/s/ James J. Ellis Director June 26, 2001
---------------------
James J. Ellis
/s/ Burton O. George Director June 26, 2001
---------------------
Burton O. George
/s/ George R. Curry Director June 26, 2001
---------------------
George R. Curry
EXHIBIT INDEX
-------------
Exhibit
Number Exhibit
------- -------
5.1 Opinion of Shughart Thomson & Kilroy, P.C. as to the
legality of the securities
5.2 Internal Revenue Service Determination Letter that the
Plan is qualified under Section 401 of the Internal
Revenue Code*
23.1 Consent of Deloitte & Touche LLP
* The registrant will submit or has submitted the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner and has
made or will make all changes required by the IRS in order to qualify the
Plan.
EXHIBIT 5.1
Opinion of Shughart Thomson & Kilroy, P.C.
June 26, 2001
Jack Henry & Associates, Inc.
663 Highway 60
Monett, MO 65708
Re: Registration Statement on Form S-8 of Jack Henry & Associates, Inc.
Gentleman:
We have acted as counsel to Jack Henry & Associates, Inc., a Delaware
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S-8 (the "Registration Statement"), with the Securities
and Exchange Commission (the "Commission") for the purposes of registering
under the Securities Act of 1933, as amended (the "Securities Act"),
1,000,000 of the Company's common stock (the "Common Shares") issuable
under the Jack Henry & Associates, Inc. 401(k) Employee Stock Ownership
Plan and Trust (the Plan").
In connection therewith, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of those documents,
corporate or other records, certificates and other papers that we deemed
necessary to examine for purposes of this opinion. We have also relied,
without investigation as to the accuracy thereof, on oral and written
communications from and officers of the Company.
Based upon the foregoing and subject to the qualifications set forth in
this letter, we are of the opinion that the Common Shares are validly
authorized and, when (a) the pertinent provisions of the Securities Act and
all relevant state securities laws have been complied with and (b) the
Common Shares have been delivered against payment therefor as contemplated
by the Plan, the Common Shares will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement.
Very truly yours,
SHUGHART THOMSON & KILROY, P.C.
EXHIBIT 5.2
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
1100 COMMERCE STREET
DALLAS, TX 75242 Employer Identification Number:
Date: SEP 10 1996 43-1128385
File Folder Number:
JACK HENRY & ASSOCIATES, INC. 430000881l
C/O CHRISTOPHER C. HALTON Person to Contact:
A. COLE STEPHENS & ASSOCIATES, INC. JILL RUTHERFORD
12720 HILLCREST, SUITE 900, LBJ 71 Contact Telephone Number:
DALLAS, IX 75230 (214) 767-6023
Plan Name:
401K EMPLOYEE STOCK OWNERSHIP
PLAN AND TRUST
Plan Number 002
Dear Applicant:
We nave made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b) (3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on
the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination letter is applicable for the amendment(s) adopted on
December 21, 1994.
This determination letter is also applicable for the amendment(s)
adopted on December 21, 1994.
This plan satisfies the requirements of Code section 4975 (e) (7).
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of
section 1.401(a) (4)-l(b) (2) of the regulations on the basis of a design-
based safe harbor described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section l.40l(a) (4)-4(b) of the regulations with respect to
those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's
coverage group consists of those employees treated as currently benefiting
for purposes of demonstrating that the plan satisfies the minimum coverage
requirements of section 410(b) of the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act. Pub. L. 103-465.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours
Bobby E. Scott
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Letter 835 (DO/CG)
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Jack Henry & Associates, Inc. on Form S-8 of our reports dated August 24,
2000 and April 20, 2001, appearing in the Annual Report on Form 10-K of Jack
Henry & Associates, Inc. for the year ended June 30, 2000 and in the Annual
Report on Form 11-K of the Jack Henry & Associates, Inc. 401(k) Employee
Stock Ownership Plan for the year ended December 31, 2000, respectively.
/s/ DELOITTE & TOUCHE LLP
St. Louis, Missouri
June 25, 2001