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As filed with the Securities and Exchange Commission on September 26, 2001
Registration No. _____________
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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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CERNER CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 43-1196944
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2800 ROCKCREEK PARKWAY, NORTH KANSAS CITY, MISSOURI 64117
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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CERNER CORPORATION
ASSOCIATE STOCK PURCHASE PLAN
AND
CERNER CORPORATION
2001 LONG-TERM INCENTIVE PLAN F
(FULL TITLE OF THE PLANS)
MARC G. NAUGHTON
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
2800 ROCKCREEK PARKWAY, NORTH KANSAS CITY, MISSOURI 64117
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(816) 221-1024
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
PLEASE SEND COPIES OF ALL CORRESPONDENCE TO:
RANDY D. SIMS, ESQ.
VICE PRESIDENT, CHIEF LEGAL OFFICER AND SECRETARY
2800 ROCKCREEK PARKWAY, NORTH KANSAS CITY, MISSOURI 64117
(816) 221-1024
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CALCULATION OF REGISTRATION FEE
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PROPOSED
AMOUNT PROPOSED MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(2) PER SHARE(1) OFFERING PRICE(1) FEE
======================================== ===================== ================== ================== ===============
$31,608.75
Common Stock, $.01 par value........ 3,000,000 $42.145 $126,435,000.00
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(1) Pursuant to Rule 457(h) of the Securities Act of 1933, and solely for
the purpose of calculating the amount of the registration fee, the proposed
maximum offering price per share and proposed maximum aggregate offering
price is based on the average of the high and low prices of the Common
Stock on September 24, 2001 on the Nasdaq Stock Market.
(2) The provisions of Rule 416 shall apply to this registration statement and
the number of shares registered on this registration statement
automatically shall increase or decrease as a result of stock splits, stock
dividends or similar transactions.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") are incorporated herein by reference: (i) the Registrant's
Annual Report on Form 10-K for the year ended December 30, 2000; (ii) the
Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001;
(iii) the Registrant's Quarterly Report on Form 10-Q for the quarter ended June
30, 2001; and (iv) the description of the Common Stock of the Registrant which
is contained in the Registrant's Registration Statement on Form 8-A (File No.
000-15386), including any amendments or reports filed for the purpose of
updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities offered hereby remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and documents, except in no event shall any information
included in any such document in response to Item 402(i), (k) or (l) of
Regulation S-K be deemed to constitute part of this Registration Statement.
Any statement contained herein or in a document incorporated or deemed
to be 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 in any subsequently filed document which is 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.
Randy D. Sims, the Registrant's Vice President, Chief Legal Officer and
Secretary, has passed on the validity of the shares of Common Stock identified
above. Mr. Sims beneficially owns or has rights to acquire an aggregate of less
than 1% of the outstanding shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 145 of the Delaware General Corporation Law (the "DGCL")
(i) gives Delaware corporations broad powers to indemnify their present and
former directors and officers and those of other enterprises, as well as certain
other persons, against expenses, judgments, fines and settlement amounts
incurred by such directors, officers or other persons in defense of any action,
suit or proceeding to which they are made parties by reason of being or having
been a director, officer, employee or agent of the corporation, or of another
enterprise at the request of the corporation, subject to specified conditions
and exclusions, (ii) gives such directors, officers or other persons who are
successful in the defense of any action, suit or proceeding the right to be
indemnified, and (iii) authorizes the corporation to purchase and
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maintain directors' and officers' liability insurance. The indemnification
authorized by Section 145 of the DGCL is not exclusive of any other rights to
which those indemnified may be entitled under any bylaws, agreement, vote of
stockholders or disinterested directors, policy of insurance or otherwise.
(b) Article Tenth of the Registrant's Restated Certificate of
Incorporation authorizes the Registrant to agree to indemnify any of its
directors, officers, employees or agents, and any person who serves at the
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the
fullest extent permitted by the laws of the state of Delaware; provided that the
Registrant is not permitted to indemnify any person from or on account of such
person's conduct which was finally adjudged to have been knowingly fraudulent,
deliberately dishonest or willful misconduct.
(c) In accordance with Section 102(b)(7) of the DGCL, Article Tenth of
the Registrant's Restated Certificate of Incorporation contains a provision
eliminating a director's personal liability to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director to
the fullest extent permitted or authorized by the laws of the state of Delaware.
Section 102(b)(7) of the DGCL prohibits the elimination or limitation of a
director's liability (1) for any breach of the director's duty of loyalty to the
Registrant or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violations of law, (3) under
Section 174 of the DGCL (relating to unlawful dividend payments or stock
redemptions or repurchases), or (4) for any transaction from which the director
derived an improper personal benefit.
(d) Section 28 of the Registrant's Bylaws requires the Registrant to
indemnify any person (1) against all liabilities and expenses actually and
reasonably incurred by such person in connection with any action, suit or
proceeding (other than an action by or in the right of the Registrant) or (2)
against any amounts paid in settlement and expenses actually and reasonably
incurred by such person in an action by or in the right of the Registrant, in
either case, by reason of the fact that such person is or was serving as a
director or officer of the Registrant or as a director or officer of another
enterprise at the Registrant's request; provided that (a) such person must have
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the Registrant's best interests and, with respect to any criminal
action or proceeding, that such person must have had no reasonable cause to
believe such person's conduct was unlawful, and (b) the Registrant is not
required to indemnify or advance expenses to such person in connection with an
action, suit or proceeding initiated by such person unless the initiation of
such action, suit or proceeding was authorized by the Registrant's Board of
Directors. Said Section 28 further provides that the Registrant shall not
indemnify any person for any liabilities or expenses incurred by such person in
connection with an action, suit or proceeding by or in the right of the
Registrant in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Registrant, unless and only to the
extent that the court in which the action, suit or proceeding is brought
determines that the person is entitled to such indemnity. If any person serving
as a director or officer of the Registrant or as a director or officer of
another enterprise at the Registrant's request is successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, said
Section 28 requires that the Registrant indemnify such person against expenses
actually and reasonably incurred by such person in connection therewith. Prior
to indemnifying a person pursuant to Section 28 of the Registrant's Bylaws, the
Registrant must determine that such person has met the specified standard of
conduct required for indemnification unless ordered by a court and except as
otherwise provided by the immediately preceding sentence. Such determination
must be made by (y) a majority vote of a quorum of the directors who were not
party to the action, suit or proceeding (or by independent legal counsel in a
written opinion if so directed by a quorum of disinterested directors or if such
a quorum is not obtainable), or (z) the stockholders. If the determination is
adverse to the person seeking to be indemnified, such person may cause the
determination to be made by a court having jurisdiction over the Registrant. The
indemnification provided by Section 28 of the Registrant's Bylaws is not
exclusive of any
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other rights to which those seeking indemnification may be entitled under any
statute, the Registrant's Restated Certificate of Incorporation, the
Registrant's Bylaws, any agreement, vote of stockholders or disinterested
directors, policy of insurance or otherwise, both as to action in their official
capacities and as to action in other capacities while holding their respective
offices.
(e) The Registrant has entered into indemnification agreements with the
Registrant's directors, Clifford W. Illig, Neal L. Patterson, Michael E.
Herman, Jeff C. Goldsmith, Gerald E. Bisbee, Jr., John C. Danforth, William B.
Neaves and Nancy-Ann DeParle, which agreements, among other things, (a) confirm
the present indemnity permitted under the DGCL, (b) provide that, in addition,
the directors shall be indemnified to the fullest possible extent permitted by
law against all expenses (including attorneys' fees), judgments, fines, and
settlement amounts, paid or incurred by them in any action or proceeding,
including any action by or in the right of the Registrant, on account of their
services as a director of the Registrant or as a director of any subsidiary of
the Registrant or as a director, officer, employee or agent of any other
company or enterprise when they are serving in such capacities at the request
of the Registrant, and (c) provide procedures for notification and defense of a
claim. However, no indemnity will be provided to any director on account of
conduct which is adjudged to be knowingly fraudulent, deliberately dishonest or
willful misconduct. The indemnification agreements also provide that the
Registrant will advance the expenses of defending an action, lawsuit or other
proceeding to the indemnified director before the matter is disposed of if the
indemnitee agrees to repay any such advances to the Registrant if it is later
determined that he or she was not entitled to indemnification.
(f) Section 28 of the Registrant's Bylaws permits the Registrant to
insure any person against any liability incurred by such person by reason of the
fact that such person is or was serving as a director or officer of the
Registrant or as a director or officer of another enterprise at the Registrant's
request, whether or not the Registrant would have the power to indemnify such
person under the provisions described above. The Registrant has obtained
directors' and officers' liability insurance for each of its directors and
executive officers which (subject to certain limits and deductibles) (i) insures
such persons against loss arising from certain claims made against them by
reason of such persons being a director or officer, and (ii) insures the
Registrant against loss which it may be required or permitted to pay as
indemnification due such persons for certain claims. Such insurance may provide
coverage for certain matters as to which the Registrant may not be permitted by
law to provide indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated herein by
reference.
Exhibit Number
4.1 Restated Certificate of Incorporation, as amended through June
29, 1996 (filed as Exhibit 3(i) to Registrant's Quarterly
Report on Form 10-Q for the quarter ended June 29, 1996, and
incorporated herein by reference).
4.2 Amended and Restated Bylaws of Registrant dated March 28,
2001.
4.3 Amended and Restated Rights Agreement, dated as of March 12,
1999, between Cerner Corporation and UMB Bank, N.A., as Rights
Agent, which includes the Form of
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Certificate of Designation, Preferences and Rights of Series A
Preferred Stock of Cerner Corporation, as Exhibit A, and the
Form of Rights Certificate, as Exhibit B (filed as an exhibit
to Registrant's current report on Form 8-A/A dated March 31,
1999 and incorporated herein by reference).
4.4 Specimen stock certificate (filed as Exhibit 4(a) to
Registrant's Registration Statement on Form S-8 (File No.
33-15156) and incorporated herein by reference).
4.5 Cerner Corporation Associate Stock Purchase Plan (filed as
Annex II to Registrant's Definitive Proxy Statement on
Schedule 14A filed on April 16, 2001, and incorporated herein
by reference).
4.6 Cerner Corporation 2001 Long-Term Incentive Plan F (filed as
Annex I to Registrant's Definitive Proxy Statement on Schedule
14A filed on April 16, 2001, and incorporated herein by
reference).
5.1 Opinion of Randy D. Sims, Esq.
23.1 Consent of KPMG LLP.
23.2 Consent of Randy D. Sims, Esq. (contained in Exhibit 5.1).
24 Power of Attorney included on page II-7 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 prospectus required by section
10(a)(3) of the Securities Act;
(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 hereto)
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 paragraphs (1)(i) and (1)(ii) 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 the 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
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securities offered herein, 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 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 this
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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant, 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 Securities 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
Securities Act and will be governed by the final adjudication of such issues.
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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 No. ________________ to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of North Kansas City, State of Missouri,
on September 26, 2001.
CERNER CORPORATION
By: /s/ Marc G. Naughton
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Marc G. Naughton
Vice President and
Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Cerner Corporation,
hereby severally constitute Neal L. Patterson, Clifford W. Illig, Marc G.
Naughton and Randy D. Sims and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below the Registration Statement filed
herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our name and behalf in our capacities as
officers and directors to enable Cerner Corporation to comply with the
provisions 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 our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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/s/ Neal L. Patterson Chairman of the Board, Chief September 26, 2001
---------------------------------------- Executive Officer
Neal L. Patterson (Principal Executive Officer)
/s/ Clifford W. Illig Vice Chairman and Director September 26, 2001
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Clifford W. Illig
/s/ Marc G. Naughton (Principal Financial and Accounting September 26, 2001
---------------------------------------- Officer)
Marc G. Naughton
/s/ Gerald E. Bisbee, Jr., Ph.D. Director September 26, 2001
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Gerald E. Bisbee, Jr., Ph.D.
/s/ Michael E. Herman Director September 26, 2001
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Michael E. Herman
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/s/ William B. Neaves, Ph.D. Director September 26, 2001
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William B. Neaves, Ph.D.
/s/ Jeff C. Goldsmith, Ph.D. Director September 26, 2001
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Jeff C. Goldsmith, Ph.D.
Director September 26, 2001
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John C. Danforth
/s/ Nancy-Ann DeParle Director September 26, 2001
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Nancy-Ann DeParle
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