As filed with the Securities and Exchange Commission on October 19, 2004
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PAR TECHNOLOGY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 16-1434688
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
PAR Technology Park
8383 Seneca Turnpike
New Hartford, NY 13413-4991
(Address of Principal Executive Offices)
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PAR Technology Corporation 1995 Stock Option Plan, as amended
(Full Title of the Plan)
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Gregory T. Cortese, Secretary
PAR Technology Park
8383 Seneca Turnpike
New Hartford, NY 13413-4991
(Name and Address of Agent For Service)
(315) 738-0600
(Telephone Number, Including Area Code, of Agent For Service)
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Copies to:
Kathy A. Fields, Esq.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered Share Price(1) Registration Fee
------------- ---------- ---------------- ------------------ ----------------
PAR Technology Corporation 1995 Stock Option Plan, as amended
Options Granted
Common Stock, $.02 par
value (2) 94,758 shares $ 1.8750 $177,671 $22.51
43,925 shares $ 2.1500 $94,439 $11.97
59,000 shares $ 2.5750 $151,925 $19.25
65,455 shares $ 2.6250 $171,819 $21.77
84,000 shares $ 3.0000 $252,000 $31.93
227,500 shares $ 3.0625 $696,719 $88.27
15,300 shares $ 3.8438 $58,810 $7.45
600 shares $ 3.9688 $ 2,381 $0.30
300 shares $ 4.4688 $ 1,341 $0.17
2,000 shares $ 4.5938 $ 9,188 $1.16
41,600 shares $ 4.6250 $192,400 $24.38
90,856 shares $ 4.7500 $431,566 $54.68
60,000 shares $ 4.8250 $289,500 $36.68
15,000 shares $ 4.9950 $74,925 $9.49
10,000 shares $ 5.4375 $ 54,375 $6.89
8,500 shares $ 5.8900 $ 50,065 $6.34
65,000 shares $ 7.8500 $510,250 $64.65
2,356 shares $10.0450 $ 23,666 $3.00
Options Reserved for Grant
Common Stock, $.02 par 613,850 shares $ 8.990 $5,518,512 $699.20
value (3) -------------- ------- ---------- -------
Total: 1,500,000 shares -- $8,761,552 $1,110.09
================ ======== ========== =========
(1) This Registration Statement shall also cover any additional shares of
Common Stock that become issuable upon exercise of options granted under the PAR
Technology Corporation 1995 Stock Option Plan, as amended (the "1995 Plan"), by
reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration which results in an
increase in the number of the outstanding shares of Common Stock of PAR
Technology Corporation.
(2) Based on options to purchase 886,150 shares of PAR Technology
Corporation's Common Stock granted as of October 12, 2004 under the 1995 Plan.
All of such shares are issuable upon the exercise of outstanding options to
purchase the number of shares at the exercise price listed above. Pursuant to
Rule 457(h)(1), the aggregate offering price and the fee have been computed upon
the basis of the price at which the options may be exercised.
(3) None of such shares are subject to outstanding options. The exercise
price of such options shall be determined at the time of grant. Accordingly,
pursuant to Rule 457(h)(1), the price of $9.075 per share, which is the average
of the high and low prices reported on the New York Stock Exchange on October
14, 2004, is set forth solely for purposes of calculating the filing fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will be
sent or given to employees, officers and directors as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registration Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 and the
documents incorporated by reference into Item 3 of Part II hereof (which
documents are incorporated by reference in the Section 10(a) prospectus) will be
sent or given to employees, officers and directors as specified by Rule
428(b)(1) free of charge upon written or oral request to Ronald J. Casciano,
Vice President, Chief Financial Officer and Treasurer, PAR Technology
Corporation, PAR Technology Park, 8383 Seneca Turnpike, New Hartford, NY 13413,
(315) 738-0600. In accordance with the rules and regulations of the Commission
and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by PAR Technology Corporation (the "Company"
or the "Registrant") with the Commission pursuant to the Securities Act of 1933,
as amended (the "Securities Act"), and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated by reference in this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K/A for the year ended
December 31, 2003, filed with the Commission pursuant to Section 13(a)
of the Exchange Act on March 30, 2004; and
(b) The Registrant's Quarterly Report on Form 10-Q for the Quarter ended
March 31, 2004, filed with the commission pursuant to Section 13(a) of
the Exchange Act on May 14, 2004.
(c) The Registrant's Quarterly Report on Form 10-Q for the Quarter ended
June 30, 2004, filed with the Commission pursuant to Section 13(a) of
the Exchange Act on August 11, 2004.
(d) The section entitled "Description of New PAR Capital Stock" contained
in Exhibit 28 to the Registrant's Registration Statement on Form 8-B,
filed with the Commission pursuant to Section 12(g) of the Exchange
Act on August 23, 1993.
All documents subsequently filed with the Commission 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 that indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our Certificate of Incorporation, as amended, provides that we shall, to
the fullest extent permitted under Delaware General Corporation Law, indemnify
all of our directors, except in certain circumstances involving wrongful acts,
such as (a) for any breach of the director's duty of loyalty to us or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174 of
the Delaware General Corporation Law, or (d) for any transaction from which the
director derived an improper personal benefit.
In addition, our By-Laws require us to indemnify any of our directors,
officers, employees or agents against all expenses and liabilities reasonably
incurred by him or her in connection with any legal action in which such person
is involved by reason of his or her position with us unless it is determined
that he or she did not act in good faith in the reasonable belief that his or
her action was in our best interest. Such indemnification shall include payment
by us of expenses incurred in defending a civil or criminal action or proceeding
in advance of the final disposition of such action or proceeding, upon our
receipt of the undertaking of the person indemnified to repay such payment if
such person shall ultimately be determined not to be entitled to such
indemnification. Our By-Laws require us to maintain, and we do so maintain, an
insurance policy insuring our directors and officers against liabilities.
We have obtained director and officer liability insurance for the benefit
of our directors and officers that insures our directors and officers against
certain losses and insures us against certain of our obligations to indemnify
such directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
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4.1 Certificate of Incorporation, as amended, of the Registrant (filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-2 (No.
333-04077) and incorporated herein by reference)
4.2 Certificate of Amendment to the Certificate of Incorporation of the
Registrant (filed as Exhibit 3.2 to the Company's Registration
Statement on Form S-2 (No. 333-04077) and incorporated herein by
reference)
4.3 By-laws of the Registrant, as amended (filed as Exhibit 3.3 to the
Company's Registration Statement on Form S-2 (No. 333-04077) and
incorporated herein by reference)
4.4 Specimen certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4 to the Company's Registration Statement on Form
S-2 (No. 333-04077) and incorporated herein by reference)
4.5 1995 Plan (filed as Exhibit 99 to the Company's Registration Statement
on Form S-8 (No. 033-63095) and incorporated herein by reference)
4.6 Amendment No. 1 to the 1995 Plan
4.7 Amendment No. 2 to the 1995 Plan
5 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5)
23.2 Consent of KPMG LLP
23.3 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included as part of the signature page of this
Registration Statement)
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 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;
(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 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 (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.
(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 Exchange 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 Exchange Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Town of New Hartford, in the State of New York, on this 19th
day of October, 2004
PAR TECHNOLOGY CORPORATION
By: /s/ John W. Sammon, Jr.
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John W. Sammon, Jr.
Chairman of the Board and President
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of PAR Technology Corporation,
hereby severally constitute and appoint Ronald J. Casciano and Charles A.
Constantino, and each of them singly, our true and lawful attorneys, with full
power to them and each of them singly, to sign for us in our names in the
capacities indicated below, any amendments to this Registration Statement on
Form S-8 (including post-effective amendments), and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and generally to do all things in our names
and on our behalf in our capacities as officers and directors to enable PAR
Technology Corporation, to comply with the provisions of the Securities Act of
1933, as amended, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said Registration Statement and
all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ John W. Sammon, Jr. Chairman of the Board October 19, 2004
--------------------------- and President
John W. Sammon, Jr. (Principal Executive Officer)
and Director
/s/ Charles A. Constantino Executive Vice President October 19, 2004
--------------------------- and Director
Charles A. Constantino
/s/ Ronald J. Casciano Vice President, Chief October 19, 2004
--------------------------- Financial Officer and
Ronald J. Casciano Treasurer (Principal
Financial and Accounting Officer)
/s/ J. Whitney Haney Director October 19, 2004
---------------------------
J. Whitney Haney
/s/ Sangwhoo Ahn Director October 19, 2004
---------------------------
Sangwhoo Ahn
/s/ James A. Simms Director October 19, 2004
---------------------------
James A. Simms
/s/ Kevin R. Jost Director October 19, 2004
---------------------------
Kevin R. Jost
EXHIBIT INDEX
Exhibit No. Description of Exhibit
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4.1 Certificate of Incorporation, as amended, of the Registrant (filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-2 (No.
333-04077) and incorporated herein by reference)
4.2 Certificate of Amendment to the Certificate of Incorporation of the
Registrant (filed as Exhibit 3.2 to the Company's Registration
Statement on Form S-2 (No. 333-04077) and incorporated herein by
reference)
4.4 By-laws of the Registrant, as amended (filed as Exhibit 3.3 to the
Company's Registration Statement on Form S-2 (No. 333-04077) and
incorporated herein by reference)
4.4 Specimen certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4 to the Company's Registration Statement on Form
S-2 (No. 333-04077) and incorporated herein by reference)
4.5 1995 Plan (filed as Exhibit 99 to the Company's Registration Statement
on Form S-8 (No. 033-63095) and incorporated herein by reference)
4.6 Amendment No. 1 to the 1995 Plan
4.7 Amendment No. 2 to the 1995 Plan
5 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5)
23.2 Consent of KPMG LLP
23.3 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included as part of the signature page of this
Registration Statement)
EXHIBIT 4.6
AMENDMENT NO. 1
PAR TECHNOLOGY CORPORATION
1995 STOCK OPTION PLAN
PAR Technology Corporation's 1995 Stock Option Plan (the "Plan") is hereby
amended as follows:
1. Article IV of the Plan is amended and restated in its entirety as follows:
STOCK
-----
"Subject to adjustment as provided in Article VII, the total number of
shares of Common Stock which may be issued under the Plan upon the exercise
of Options and stock appreciation rights provided pursuant to the Plan
shall not exceed 1,000,000 shares. Shares of Common Stock covered by
Options that expire, terminate (other than by reason of the exercise of
stock appreciation rights as provided in Section 6.9), or are canceled
without having been exercised shall become available for future grants
under the Plan. Upon the exercise of Options, the Company may either issue
unissued shares of Common Stock or transfer shares of Common Stock held in
its treasury."
2. Except as modified hereby, the Plan shall remain in full force and effect.
EXHIBIT 4.7
AMENDMENT NO. 2
PAR TECHNOLOGY CORPORATION
1995 STOCK OPTION PLAN, AS AMENDED
PAR Technology Corporation's 1995 Stock Option Plan, as amended (the "Plan") is
hereby further amended as follows:
1. Article IV of the Plan is amended and restated in its entirety as follows:
STOCK
-----
"Subject to adjustment as provided in Article VII, the total number of
shares of Common Stock which may be issued under the Plan upon the exercise
of Options and stock appreciation rights provided pursuant to the Plan
shall not exceed 2,000,000 shares. Shares of Common Stock covered by
Options that expire, terminate (other than by reason of the exercise of
stock appreciation rights as provided in Section 6.9), or are canceled
without having been exercised shall become available for future grants
under the Plan. Upon the exercise of Options, the Company may either issue
unissued shares of Common Stock or transfer shares of Common Stock held in
its treasury."
2. Except as modified hereby, the Plan shall remain in full force and effect.
EXHIBIT 5
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
October 19, 2004
PAR Technology Corporation
PAR Technology Park
8383 Seneca Turnpike
New Hartford, NY 13413-4991
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as counsel for PAR Technology Corporation, a Delaware
corporation (the "Company"), in connection with the registration on a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, of the offer and sale of up to an additional
1,500,000 shares (the "Shares") of Common Stock, par value $0.02 per share, of
the Company under the 1995 Stock Option Plan, as amended (the "1995 Plan").
We have examined, and are familiar with, and have relied as to factual
matters solely upon, originals or copies certified, or otherwise identified to
our satisfaction, of such documents, corporate records or other instruments as
we have deemed necessary or appropriate for the purposes of the opinion set
forth herein, including, without limitation, (a) the 1995 Plan, (b) the
Certificate of Incorporation, as amended, (c) the Company's By-laws, as amended
and (d) certified board and shareholder resolutions of the Company.
We are members of the Bar of the Commonwealth of Massachusetts and are not
expert in, and express no opinion regarding, the laws of any jurisdiction other
than the Commonwealth of Massachusetts, the General Corporation Law of the State
of Delaware and the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares are duly authorized and, when issued and delivered pursuant to the terms
of the 1995 Plan and the terms of any agreement relating to any of the options
granted thereunder, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
-----------------------------------
TESTA, HURWITZ & THIBEAULT, LLP
EXHIBIT 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors and Shareholders
PAR Technology Corporation:
We consent to the use of our report dated February 20, 2004, with respect to the
consolidated balance sheet of PAR Technology Corporation as of December 31, 2003
and the related consolidated statements of income, comprehensive income, changes
in shareholders' equity, and cash flows for the year ended December 31, 2003,
and the financial statement schedule, "Valuation and Qualifying Accounts and
Reserves", as of and for the year ended December 31, 2003, incorporated herein
by reference.
KPMG LLP
October 12, 2004
Syracuse, New York
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 28, 2003 relating to the
financial statements and financial statement schedule which appear in PAR
Technology Corporation's Annual Report on Form 10-K for the year ended December
31, 2003.
PRICEWATERHOUSECOOPERS LLP
Syracuse, NY
October 12, 2004