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As filed with the Securities and Exchange Commission on December 15, 1998
Registration No: 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Quest Education Corporation
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(Exact name of registrant as specified in its charter)
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Delaware 65-0038445
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1327 Northmeadow Parkway, Suite 132, Roswell, Georgia 30076
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(Address of Principal Executive Offices) (Zip Code)
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1998 Amendment to 1996 Performance Incentive Plan
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(Full title of the Plan)
Gary D. Kerber, President
Quest Education Corporation
1327 Northmeadow Parkway, Suite 132
Roswell, Georgia 30076
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(Name and address for agent for service)
(770) 475-9930
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(Telephone number, including area code, for agent for service)
Copies to:
Morris C. Brown, Esq.
Greenberg Traurig, P.A.
777 South Flagler Drive, Suite 300-East Tower
West Palm Beach, Florida 33401
(561) 650-7928
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) FEE
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Common Stock,
Par Value $.01 500,000 $10.44 $5,220,000.00 $1,451.16
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TOTAL: 500,000 $10.44 $5,220,000.00 $1,451.16
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(1) The number of shares stated is the aggregate number of shares of Common
Stock to be issued upon the exercise of options granted or to be
granted under the 1998 Amendment to the Company's 1996 Performance
Incentive Plan (500,000). A registration fee of $1,982.48 with respect
to 961,666 shares in the original plan was paid when the initial
Registration Statement was filed with the Commission on August 4, 1997.
(2) Estimated in accordance with Rule 457(c) under the Act solely for the
purpose of calculating the total registration fee. Computation based
upon the average of the high and low prices of the Common Stock as
reported on the Nasdaq Stock Market on December 10, 1998 because the
price at which the options to be granted in the future may be exercised
is not currently determinable.
In addition, pursuant to Rule 416(c) under the Act, this registration
statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan(s) described herein and shares of Common
Stock of the Company issuable to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
EXPLANATORY NOTE
On September 22, 1998, the Stockholders approved an amendment to the
1996 Performance Incentive Plan (the "Plan") that increased the number of shares
of Common Stock, $0.01 par value, authorized for issuance under the Plan from
961,666 to 1,461,666. This Form S-8 registers such additional securities.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Information required by Item 1 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Information required by Item 2 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
1. The following documents, which have been filed by the registrant
with the Securities and Exchange Commission (the "Commission"), File Number
000-21567, pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"),
are incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1998, filed with the Commission on June 30,
1998;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ending June 30, 1998, filed with the Commission on August 12,
1998;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ending September 30, 1998, filed with the Commission on
November 13, 1998;
(d) The Company's Proxy Statement on Schedule 14a dated August 24,
1998, filed with the Commission on August 26, 1998;
(e) The Company's Registration Statement on Form S-8 (File Number
333-32809) filed with the Commission on August 4, 1997;
(f) The Company's Prospectus filed pursuant to Rule 424(b)(1)
(File Number 333-50221) filed with the Commission on July 2,
1998;
(g) The Company's Current Report on Form 8-K filed with the
Commission on October 5, 1998; and
(h) The description of the registrant's Common Stock contained in
the registrant's Registration Statement on Form 8-A/A filed
with the Commission on October 18, 1996.
2. All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered 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 respective date of filing of such documents. Any statement
contained in a document incorporated by reference herein is modified or
superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which is
incorporated by reference modifies or supersedes such statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock offered hereby will be passed upon for
the Company by the law firm of Greenberg Traurig, P.A., the Company's general
counsel. Mr. Morris C. Brown, a shareholder in the law firm of Greenberg
Traurig, P.A., is the duly elected Secretary for the Company and owns options to
purchase 5,001 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the Delaware General Corporation Law permits a
corporation, by so providing in its certificate of incorporation, to eliminate
or limit director's liability to the corporation and its stockholders for
monetary damages arising out of certain alleged breaches of their fiduciary
duty. Section 102(b)(7) provides that no such limitation of liability may affect
a director's liability with respect to any of the following: (i) breaches of the
director's duty of loyalty to the corporation or its stockholders; (ii) acts or
omissions not made in good faith or which involve intentional misconduct or
knowing violations of law; (iii) liability for dividends paid or stock
repurchased or redeemed in violation of Section 174 of the Delaware General
Corporation Law; or (iv) transactions from which directors derived an improper
personal benefit. Section 102(b)(7) does not authorize any limitation on the
ability of the corporation or its stockholders to obtain injunctive relief,
specific performance or other equitable relief against directors.
Article Sixth of the registrant's Restated Certificate of Incorporation
provides that "a director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived any improper personal
benefit. If the Delaware General Corporation Law is amended after the date of
incorporation of the Corporation to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended." Any
repeal or modification of this provision by the stockholders of the Company
shall not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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4.1 1996 Performance Incentive Plan (incorporated by reference
from Exhibit 10.53 to Amendment No. 1 to Registration
Statement on Form S-1 filed with the Commission on September
20, 1996).
4.2 1998 Amendment to 1996 Performance Incentive Plan
(incorporated by reference from Exhibit 10.1 to Current Report
on Form 8-K filed with the Commission on October 5, 1998).
5.1* Opinion of Greenberg Traurig, P.A.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Winther, Stave & Co., LLP
23.3* Consent of Greenberg Traurig, P.A. (contained in Exhibit 5.1).
24.1* Powers of Attorney (included in the signature page of this
Registration Statement).
99.1 Report of Winther, Stave & Co., LLP (incorporated by reference
from Ex. 99.1 to the Company's Form 10-K filed with the
Commission on June 30, 1997).
99.2 Report of Winther, Stave & Co., LLP (incorporated by reference
from Ex. 99.2 to the Company's Form 10-K filed with the
Commission on June 30, 1997).
99.3 Report of Winther, Stave & Co., LLP (incorporated by reference
from Ex. 99.3 to the Company's Form 10-K filed with the
Commission on June 30, 1997).
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*Filed with this Registration Statement.
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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:
To include any material information with respect to the plan
of distribution not previously disclosed in this 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 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 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) 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 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.
(d) 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 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 of 1933 and will be governed by the final adjudication
of such issue.
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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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Roswell, State of Georgia, on this 15th day of
December 1998.
QUEST EDUCATION CORPORATION. (Registrant)
By: /s/ Gary D. Kerber
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Gary D. Kerber
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints GARY D. KERBER his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ Gary D. Kerber President, Chief Executive Officer, December 15, 1998
- ------------------------------------ and Chairman of the Board
Gary D. Kerber (Principal Executive Officer)
/s/ Vince Pisano Vice President and Chief December 15, 1998
- ------------------------------------ Financial Officer
Vince Pisano
/s/ Robert J. Cresci Director December 15, 1998
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Robert J. Cresci
/s/ William D. Ford Director December 15, 1998
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William D. Ford
/s/ Carl S. Hutman Director December 15, 1998
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Carl S. Hutman
/s/ Richard E. Kroon Director December 15, 1998
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Richard E. Kroon
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EXHIBIT 5.1
[GREENBERG TRAURIG LETTERHEAD]
December 15. 1998
Quest Education Corporation
1327 Northmeadow Parkway, Suite 132
Roswell, Georgia 30076
Gentlemen:
You have requested our opinion with respect to the offering by you,
Quest Education Corporation, a Delaware corporation (the "Company"), of up to
500,000 additional shares (the "Option Shares") of the Company's Common Stock,
par value $.01 per share, pursuant to the provisions of the 1998 Amendment to
the Company's 1996 Performance Incentive Plan (the "Plan"). The Option Shares
are being offered and sold pursuant to the Registration Statement (the
"Registration Statement") on Form S-8 under the Securities Act of 1933, as
amended (the "Act").
We have examined a copy of the Restated Certificate of Incorporation,
as amended, and the By-Laws of the Company, the minutes of various meetings of
the Company's Board of Directors and Stockholders, the Registration Statement
prepared by the Company and filed with the Securities and Exchange Commission
and the original or certified copies of such agreements, certificates of public
officials, certificates of officers and representatives of the Company and
others, opinions of counsel, documents, papers, statutes and authorities as we
deemed necessary as a basis for the opinions hereinafter set forth. In such
examinations, we have assumed the genuineness of all signatures and the
conformity to original documents of all copies. As to various questions of fact
material to such opinions, we have relied upon statements and certificates of
officers and representatives of the Company and others.
Based upon the foregoing, we are of the opinion that the Option Shares
have been duly and validly authorized and, when sold, paid for and issued as
contemplated by the Plan and the Registration Statement, will be duly and
validly issued, fully paid and non-assessable.
Please be advised that Morris C. Brown, a shareholder in the Firm, is
the Secretary of the Company and owns options to purchase 5,001 shares of the
Company's Common Stock.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement, and to the use of our name as your counsel in connection
with the Registration Statement and in the Prospectus forming a part thereof. In
giving this consent, we do not thereby concede that we come within the
categories of persons whose consent is required by the Act or the General Rules
and Regulations promulgated thereunder.
Very truly yours,
GREENBERG TRAURIG, P.A.
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1998 Amendment to the 1996 Performance
Incentive Plan of our report dated June 2, 1998, with respect to the
consolidated financial statements and schedule of Quest Education Corporation
(formerly Educational Medical, Inc.) included in its Annual Report (Form 10-K)
for the year ended March 31, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
December 14, 1998
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Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the 1998 Amendment to the 1996 Performance
Incentive Plan of our report dated April 18, 1997 with respect to the audited
combined financial statements of Educational Management, Inc. and Wikert and
Rhude, general partnership, as of December 31, 1996 and 1995 and for each of the
three years in the period ended December 31, 1996 and our reports dated May 16,
1997 with respect to the balance sheet of Nebraska College of Business (a
division of Nebraska Acquisition Corp., a wholly-owned subsidiary of Quest
Education Corporation f/k/a Educational Medical, Inc.) as of March 31, 1997 and
the balance sheet of Lincoln School of Commerce (a division of Nebraska
Acquisition Corp., a wholly-owned subsidiary of Quest Education Corporation
f/k/a Educational Medical, Inc.) as of March 31, 1997 included in Quest
Education Corporation f/k/a Educational Medical, Inc.'s Annual Report on Form
10-K for the year ended March 31, 1998, filed with the Securities and Exchange
Commission.
/s/ Winther, Stave & Co., LLP
Spencer, Iowa
December 14, 1998
