<PAGE>
As filed with the Securities and Exchange Commission on July 19, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NATIONAL INFORMATION CONSORTIUM, INC.
------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Colorado 52-2077581
------------------------------- ----------------------------
(State or Other Jurisdiction of (IRS Employer Identification
Incorporation or Organization) Number)
12 CORPORATE WOODS, 10975 BENSON STREET, SUITE 390, OVERLAND PARK, KANSAS 66210
- -------------------------------------------------------------------------------
(Address of Principal Executive Offices)
EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED 1998 STOCK OPTION PLAN
---------------------------------------------
(Full Title of the Plan)
Jeffrey S. Fraser, Chairman
12 Corporate Woods, 10975 Benson Street, Suite 390
Overland Park, Kansas 66210
-----------------------------------------
(Name and Address of Agent for Service)
877-234-EGOV
-----------------------------------------------
(Telephone Number of Agent for Service)
Copies To:
-----------
Karen L. Witt, Esq.
Rothgerber Johnson & Lyons LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
(303) 623-9000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Maximum Proposed Amount of
Title of Securities Amount to be Offering Price Maximum Registration
to be Registered Registered Per Share Aggregate Fee
Offering Price
<S> <C> <C> <C> <C>
Common Stock 12,500,000(1) $16.41(2) $205,125,000(2) $57,024.75
- --------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this Registration Statement also covers an indeterminate number of
shares which by reason of certain events specified in the plans may become
subject to the plans.
<PAGE>
(2) Pursuant to Rule 457 under the Securities Act of 1933, as amended, the
proposed maximum offering price per share and the proposed maximum aggregate
offering price are estimated solely for purposes of calculating the registration
fee and are based upon the average of the high and low prices of the Company
Stock quoted on the NASDAQ National Market on July 15, 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. . . . . . . . . . . . . . . .4
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL . . . . . . . . . . . . . . . .4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. . . . . . . . . . . . . . .4
ITEM 8. EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
ITEM 9. UNDERTAKINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
EXHIBIT INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and information are incorporated in this
Registration Statement by reference:
(a) The Form S-1 Registration Statement of National Information
Consortium, Inc. (the "Company"), Registration No. 333-77939 ("Form
S-1"), including the Description of Capital Stock section on page 62.
(b) The Company's Form 8-A Registration Statement, Registration
No. 0-26621.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended, prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
de-registers all securities then remaining unsold shall be deemed to be
incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing such documents. Any statement contained
herein or in a document, all or a portion of which is 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 also is or 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 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the common stock of the Company ("Company Stock")
registered pursuant to this Form S-8 Registration Statement will be passed
upon for the Company by the law firm of Rothgerber Johnson & Lyons LLP, One
Tabor Center, Suite 3000, 1200 17th Street, Denver, Colorado 80202, which has
served as special counsel to the Company in the preparation of the Form S-8
Registration Statement. As of the date prior to the Company's Initial Public
Offering, no members of this law firm owned any shares of Company Stock. No
members of this law firm are employed on a contingent basis by the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article V of the Articles of Incorporation of the Company indemnifies
directors from personal liability to the greatest extent possible as is now,
or in the future, provided by law. Article VIII of the Bylaws of the Company
provides for indemnification of directors, officers, employees and agents to
the greatest extent possible.
Sections 7-109-101 to 110 of the Colorado Business Corporation Act
permit a corporation to indemnify a person against expenses and liability
incurred in a proceeding to which that person is made a party because of his
or her having been a director of the corporation if (i) that person conducted
himself or herself in good faith and in a manner reasonably believed to be in
the
<PAGE>
corporation's best interests or not opposed to the corporation's best
interests; and (ii) in the case of a criminal proceeding, that person had no
reasonable cause to believe his or her conduct was unlawful. The corporation
may indemnify and advance expenses to an officer, employee, fiduciary, or
agent to the same extent as to a director.
ITEM 8. EXHIBITS
The following exhibits are attached to this registration statement or
are incorporated by reference herein:
4.1 Amended and Restated 1998 Stock Option Plan (1)
4.2 Employee Stock Purchase Plan (1)
4.3 Non-Qualifying Stock Option Agreement
4.4 Incentive Stock Option Agreement
4.5 Employee Stock Purchase Plan Offering
5 Opinion of Rothgerber Johnson & Lyons LLP as to legality
23.1 Consent of Independent Accountants
23.2 Consent of Rothgerber Johnson & Lyons (included in Exhibit 5 hereto)
24 Power of Attorney
(1) Incorporated herein by reference to the Company's Form S-1.
ITEM 9. UNDERTAKINGS
(a) Rule 415 Offering
The Company 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 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.
(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.
<PAGE>
(b) Undertaking Concerning Filings Incorporating Subsequent Exchange Act
Documents by Reference
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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 therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Filing of Registration Statement on Form S-8
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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, hereunto duly
authorized, in the City of Overland Park and the State of Kansas, on this
19th day of July, 1999.
NATIONAL INFORMATION CONSORTIUM
By: /s/ Jeffrey S. Fraser
-------------------------------
Jeffrey S. Fraser, Chairman and
Chief Executive Officer
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.
Signature Title Date
- --------- ----- ----
/s/ Jeffrey S. Fraser Chairman and Chief July 19, 1999
- ---------------------------- Executive Officer
Jeffrey S. Fraser
/s/ James B. Dodd President, COO July 19, 1999
- ---------------------------- and Director
James B. Dodd
/s/ Kevin C. Childress Chief Financial July 19, 1999
- ---------------------------- Officer (Principal
Kevin C. Childress Financial and
Accounting Officer)
/s/ John L. Bunce, Jr. Director July 19, 1999
- ----------------------------
John L. Bunce, Jr.
/s/ Daniel J. Evans Director July 19, 1999
- ----------------------------
Daniel J. Evans
/s/ Ross C. Hartley Director July 19, 1999
- ----------------------------
Ross C. Hartley
/s/ Patrick J. Healy Director July 19, 1999
- ----------------------------
Patrick J. Healy
Director
- ----------------------------
Peter Wilson
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Amended and Restated 1998 Stock Option Plan (1)
4.2 Employee Stock Purchase Plan (1)
4.3 Non-Qualifying Stock Option Agreement
4.4 Incentive Stock Option Agreement
4.5 Employee Stock Purchase Plan Offering
5 Opinion of Rothgerber Johnson & Lyons LLP
as to legality of the Company Stock
23.1 Consent of Independent Accountants
23.2 Consent of Rothgerber Johnson & Lyons LLP (included within
Exhibit 5)
24 Power of Attorney
</TABLE>
(1) Incorporated herein by reference to the Company's Form S-1.
<PAGE>
EXHIBIT 4.3
NATIONAL INFORMATION CONSORTIUM, INC.
NON-QUALIFYING STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into this________day of_________ (the
"Date of Grant"), by and between National Information Consortium, Inc, a
Colorado corporation ("NIC") and _______________ (the "Optionee").
WITNESSETH:
WHEREAS, on May 5, 1998, NIC, formerly known as International Information
Consortium, Inc., adopted the International Information Consortium, Inc. 1998
Stock Option Plan (the "Plan") pursuant to which NIC may grant from time to
time, on or prior to May 4, 2008, options to purchase shares of common stock of
NIC ("NIC Common Stock"), to key employees (as described in the Plan, "Key
Employee") of NIC or of any of its subsidiary corporations, such options to be
granted to such persons who are eligible to receive options under the Plan in
such amounts and under such form of agreement as shall be determined by the
Committee pursuant to the Plan; and
WHEREAS, the Committee has determined that the Optionee is a Key Employee
of NIC or of one of its subsidiary corporations within the meaning of the Plan,
and that the Optionee shall be granted an option to purchase shares of NIC
Common Stock on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and other good and valuable consideration paid by the Optionee
to NIC, the parties hereto do hereby agree as follows:
ARTICLE I
INCORPORATION OF PLAN
1.1 INCORPORATION OF PLAN. All provisions of this contract and the
rights of the Optionee hereunder are subject in all respects to the provisions
of the Plan (which are hereby incorporated by this reference and made a part of
this agreement) and are subject further to the powers of the Committee of NIC as
provided in the Plan. Capitalized terms not otherwise defined herein shall have
the same meanings as in the Plan .
ARTICLE II
GRANT OF OPTION
2.1 GRANT OF OPTION. Pursuant to the authorization of the
Committee, and subject to the terms, conditions and provisions contained in
the Plan and this Option Agreement, NIC hereby grants to the Optionee the
right and option (the Option") to purchase from NIC, at the times and on the
terms and conditions hereinafter set forth, all or part of an aggregate of
______________(_____________) shares of NIC Common Stock at the purchase
price of $______ per share. Exercises of this Option maybe honored by issuing
authorized and unissued shares of NIC
<PAGE>
Common Stock or, at the election of NIC, by transferring shares of NIC Common
Stock which may at the time be held by NIC as treasury shares. This option is
not intended to qualify as an incentive stock option under Section 422 of the
Code.
2.2 ADJUSTMENTS FOR STOCK DIVIDENDS, SPLITS, ETC. In the event that,
prior to the delivery to the Optionee by NIC of all the shares of NIC Common
Stock in respect of which this Option is hereby granted, NIC shall have effected
any stock dividends or split up, or combination or reclassification of shares,
then to the extent necessary to prevent dilution or enlargement of the
Optionee's rights hereunder:
(a) in the event that a net increase shall have been effected
in the number of outstanding shares of NIC Common Stock, the number of shares
remaining subject to this Option shall be proportionately increased, and the
cash consideration payable per share shall he proportionately reduced, and
(b) in the event that a net reduction shall have been effected
in the number of outstanding shares of NIC Common Stock, the number of shares
remaining subject to this Option shall be proportionately reduced, and the cash
consideration payable per share shall be proportionately increased.
ARTICLE III
TERMS OF OPTION
3.1 TERMS OF OPTION. The Option granted hereunder shall be subject to
the following terms and conditions.
(a) COMMENCEMENT OF EXERCISE PERIOD. Options for the shares
subject to this Agreement may be exercised by Optionee on or after the dates on
which the right to exercise Options for such shares has vested, in accordance
with the following schedule, unless sooner terminated pursuant to the terms of
this Agreement, and subject to the right of accumulation provided for herein.
The right to exercise Options shall vest from time to time in accordance with
the following schedule on the date hereof and the first four anniversary dates
of the Date of Grant as indicated. Options shall not be exercisable after the
tenth anniversary of the Date of Grant (the "Expiration Date").
-2-
<PAGE>
<TABLE>
<CAPTION>
Date on Which Options Will Vest Number of Shares For
Which Options Will Vest
- ----------------------------------------------------------------------------------
<S> <C>
________________ ______
________________ ______
________________ ______
</TABLE>
Notwithstanding the preceding provisions of this subparagraph (a), in the event
(i) NIC shall not be the surviving corporation in any merger, consolidation, or
reorganization, (ii) of the acquisition by another corporation of all or
substantially all of the assets of NIC, or (iii) the liquidation or dissolution
of NEC, the Option granted hereunder shall become immediately exercisable to the
extent of all of the aggregate number of shares subject to this Option not
having been previously exercised or expired for a period commencing 30 days
immediately prior to and ending on the day immediately prior to such merger,
consolidation, reorganization or acquisition of all or substantially all of the
assets of NIC, or the liquidation or dissolution of NIC, but in no event later
than the time specified in paragraph (b) of this Section 3.1. In addition,
notwithstanding the preceding provisions of this subparagraph (a), in the event
Optionee's employment with NIC is involuntarily terminated other than "for
cause," as defined on his employment agreement, or death or disability, the
Option granted hereunder shall become immediately exercisable to the extent of
all of the aggregate number of shares subject to this Option not having been
previously exercised or expired.
(b) EMPLOYMENT REQUIREMENT. The Option shall be exercisable in
the manner set forth above during the lifetime of the Optionee only by the
Optionee and may not be exercisable by the Optionee unless at the time of
exercise the Optionee is an employee of NIC or of one of its subsidiary
corporations and shall have been continuously so employed since the Date of
Grant, except as follows:
(i) If the Optionee's employment with NIC or any of its
subsidiary corporations should be terminated "for cause" in accordance
with his employment agreement or if such Optionee should voluntarily
terminate such employment, the Option (irrespective of whether or not
such Option may then be exercisable) shall immediately terminate and be
forfeited with respect to any shares not already purchased by the
Optionee, and no payment shall be due from NIC to the Optionee on account
of such termination.
(ii) in the event of the death or disability of the
Optionee during the Optionee's employment with NIC or with any of its
subsidiary corporations, the Option shall be exercisable, in the event of
death, only by or on behalf of such person or persons to whom the
Optionee's rights under the Option shall have passed by the Optionee's
will or by the laws of descent and distribution, and, in the event of
either death or disability [x] only if such Option is exercised prior to
the expiration of one (1) year after the date of the Optionee's death or
disability (and in accordance with all other terms of the Plan) or prior
to the
-3-
<PAGE>
Expiration Date, whichever shall first occur, and [y] only to the
extent that the Optionee was entitled to exercise such Option immediately
prior to such Optionee's death or disability.
(iii) In the event of the Optionee's termination of
employment with NIC or any of its subsidiary corporations for any reason
other than death, disability, on account of voluntary termination by the
Optionee, or for cause, the Option shall be exercisable [x] only if
exercised prior to the expiration of thirty (30) days after the date of
such termination or prior to the Expiration Date, whichever shall first
occur, and [y] only to the extent that the Optionee was entitled to
exercise the Option immediately prior to the date of such termination.
(c) EXERCISE. The Option granted hereunder shall be
exercisable at such times and in such amounts as defined in this Section 3.1 by
the giving of written notice of exercise to NIC, specifying the number of shares
to be purchased, by payment of the purchase price therefor by cash or other
shares of NIC Common Stock and by provision of such representations and
withholding agreements as shall be requested by NIC in accordance with Section 8
of the Plan.
ARTICLE IV
ADJUSTMENTS FOR MERGERS, REORGANIZATIONS
4.1 ADJUSTMENTS FOR MERGERS, REORGANIZATIONS, ETC. If NIC shall
become a party to any corporate merger, consolidation, major acquisition of
property for stock, separation, reorganization or liquidation, NIC shall have
power to make arrangements which shall be binding upon the Optionee for the
assumption of this Option by any surviving, continuing, successor or purchasing
corporation as the case may be (subject to any applicable provisions of the
Code) or the substitution of a new Option of comparable value for this Option.
ARTICLE V
SECURITIES LAWS
5.1 INVESTMENT REPRESENTATION. Optionee represents and warrants that
he has acquired these Options for investment and not with a view to resale,
distribution, offering, transferring, mortgaging, pledging, hypothecating, or
otherwise disposing of such shares under circumstances which would constitute a
public offering or distribution under the Securities Act of 1933 or the
securities laws of any state (collectively, "distribution"), and agrees that he
will acquire all shares provided for hereunder for investment and not with a
view to distribution. Upon each exercise of these Options, Optionee will
deliver to the Corporation a written representation to such effect in a form
prepared by counsel to NIC. Certificates for the shares acquired by the
employee under these Options shall bear a legend substantially in the following
form:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE
-4-
<PAGE>
REGISTRATION STATEMENT FOR THE SHARES UNDER SAID ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO NIC THAT REGISTRATION IS
NOT REQUIRED UNDER SAID ACT.
5.2 RESTRICTIONS UNDER SECURITIES LAWS. These Options shall be
subject to the requirement that if at any time NIC determines that the listing,
registration or qualification of the shares covered thereby upon any securities
exchange or under state or federal law or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the granting of these Options or the issue or purchase of
shares thereunder, these Options may not be exercised in whole or in part unless
and until such listing, registration, qualification, consent or approval shall
have been effective or obtained free of any conditions not acceptable to NIC.
ARTICLE VI
MISCELLANEOUS
6.1 NOT AN EMPLOYMENT CONTRACT. Nothing herein contained shall he
construed as requiring NIC or any subsidiary corporation to employ the Optionee
for any specific period.
6.2 NONASSIGNABILITY. Except as otherwise herein provided, the Option
herein granted and the rights and privileges conferred hereby shall not be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment, or
similar process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of the Option herein granted, or of any right or privilege
conferred hereby, or upon the levy of any attachment or similar process upon the
rights and privileges conferred hereby, contrary to the provisions hereof, this
Option and the rights and privileges conferred hereby shall immediately become
null and void.
6.3 RIGHTS OF OPTIONEE. The Optionee shall not be, nor shall the
Optionee have any of the rights or privileges of, a stockholder of NIC in
respect of any of the shares issuable upon the exercise of this Option unless
and until such shares have been purchased.
6.4 NOTICE. Any notice required to be given under the terms of
this Agreement shall be addressed to NIC in care of its president at its
offices at National Information Consortium, Inc. 12 Corporate Woods, 10975
Benson Street, Suite 390, Overland, Kansas 66210, Attention: James B. Dodd,
and any notice to be given to the Optionee shall be addressed to Optionee at
the address set forth on the employee records of NIC. Either party hereto may
from time to time change the address to which notices are to be sent to such
party by giving written notice of such change to the other party. Any notice
hereunder shall be deemed to have been duly given if and when addressed as
aforesaid, registered and deposited, postage and registry fee prepaid, in a
post office regularly maintained by the United States Government.
6.5 BINDING EFFECT. This Agreement shall bind, and, except as
specifically provided herein, shall inure to the benefit of the respective
heirs, legal representatives, successors and assigns of the parties hereto.
-5-
<PAGE>
6.6 WITHHOLDING. The Optionee and each successor agree to make
appropriate arrangements with NIC or its subsidiary corporations for
satisfaction of any applicable federal, state or local income tax withholding
requirements or like requirements, including, if requested, the payment at
the time of a "disqualifying disposition" (as defined in the Code) of stock
acquired pursuant to the exercise of an Option of all such taxes and
requirements required in order to allow a federal income tax deduction on
account of any such disqualifying disposition.
6.7 OPTIONS SUBJECT TO THE PLAN. The Option hereby granted is subject
to the Plan The terms and provisions of the Plan as in effect on the Date of
Grant hereof are hereby incorporated by reference. In the event of a conflict
between any term or provision contained in this Option Agreement and a term or
provision of the Plan, the applicable terms and provisions of the Plan will
prevail.
6.8 GOVERNING LAW. This Agreement and the rights of all persons
claiming hereunder shall be construed and determined in accordance with the laws
of the State of Colorado.
6.9 AVAILABILITY OF INFORMATION. We have filed with the Securities
Exchange Commission in Washington, D.C. a registration statement on Form S-8
under the Securities Act of 1933 with respect to the common stock offered in our
initial public offering which includes any grants of stock made under this Plan.
The Form S-8 incorporates by reference the registration statements on Form S-1
and Form 8-A. You may obtain copies of these documents (the S-1, S-8 and 8-A)
without charge by contacting National Information Consortium, Inc., 12
Corporate Woods, 10975 Benson Street, Suite 390, Overland, Kansas 66210, ATT:
James B. Dodd, (877) 234-3468. You may also obtain copies of the Plan by
contacting the same address.
IN WITNESS WHEREOF, NIC has caused this Agreement to be executed by its
officers thereunto duly authorized and its corporate seal to be hereunto
affixed, and the Optionee has hereunto set his hand as of the day and year first
above written.
NATIONAL INFORMATION CONSORTIUM, INC.
By:
---------------------------------------
James B. Dodd, President
"OPTIONEE"
--------------------------------------------
-6-
<PAGE>
EXHIBIT 4.4
NATIONAL INFORMATION CONSORTIUM, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into this ___ day of _________, 1999
(the "Date of Grant"), by and between National Information Consortium, Inc, a
Colorado corporation ("NIC") and ___________________________ (the "Optionee").
WITNESSETH:
WHEREAS, on May 5, 1998, NIC, formerly known as International Information
Consortium, Inc., adopted the International Information Consortium, Inc. 1998
Stock Option Plan (the "Plan") pursuant to which NIC may grant from time to
time, on or prior to May 4, 2008, options to purchase shares of common stock of
NIC ("NIC Common Stock"), to key employees (as described in the Plan, "Key
Employee") of NIC or of any of its subsidiary corporations, such options to be
granted to such persons who are eligible to receive options under the Plan in
such amounts and under such form of agreement as shall be determined by the
Committee pursuant to the Plan; and
WHEREAS, the Committee has determined that the Optionee is a Key Employee
of NIC or of one of its subsidiary corporations within the meaning of the Plan,
and that the Optionee shall be granted an option to purchase shares of NIC
Common Stock on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and other good and valuable consideration paid by the Optionee
to NIC, the parties hereto do hereby agree as follows:
ARTICLE I
INCORPORATION OF PLAN
1.1 INCORPORATION OF PLAN. All provisions of this contract and the
rights of the Optionee hereunder are subject in all respects to the provisions
of the Plan (which are hereby incorporated by this reference and made a part of
this agreement) and are subject further to the powers of the Committee of NIC as
provided in the Plan. Capitalized terms not otherwise defined herein shall have
the same meanings as in the Plan.
ARTICLE II
GRANT OF OPTION
2.1 GRANT OF OPTION. Pursuant to the authorization of the Committee,
and subject to the terms, conditions and provisions contained in the Plan and
this Option Agreement, NIC hereby grants to the Optionee the right and option
(the Option") to purchase from NIC, at the times and on the terms and conditions
hereinafter set forth, all or part of an aggregate of ____________
______________________________ (______) shares of NIC Common Stock at the
purchase
<PAGE>
price of $___ per share. Exercises of this Option maybe honored by issuing
authorized and unissued shares of NIC Common Stock or, at the election of
NIC, by transferring shares of NIC Common Stock which may at the time be held
by NIC as treasury shares. This option is intended to qualify as an incentive
stock option under Section 422 of the Code, except that, to the extent that
this Option or any portion thereof should fail to meet the requirements of
Code Section 422 or Section 9 of the Plan, only such portion of this Option
failing to meet such requirements shall be treated as a nonqualified stock
option.
2.2 ADJUSTMENTS FOR STOCK DIVIDENDS, SPLITS, ETC. In the event that,
prior to the delivery to the Optionee by NIC of all the shares of NIC Common
Stock in respect of which this Option is hereby granted, NIC shall have effected
any stock dividends or split up, or combination or reclassification of shares,
then to the extent necessary to prevent dilution or enlargement of the
Optionee's rights hereunder:
(a) in the event that a net increase shall have been effected
in the number of outstanding shares of NIC Common Stock, the number of shares
remaining subject to this Option shall be proportionately increased, and the
cash consideration payable per share shall he proportionately reduced, and
(b) in the event that a net reduction shall have been effected
in the number of outstanding shares of NIC Common Stock, the number of shares
remaining subject to this Option shall be proportionately reduced, and the cash
consideration payable per share shall be proportionately increased.
ARTICLE III
TERMS OF OPTION
3.1 TERMS OF OPTION. The Option granted hereunder shall be subject to
the following terms and conditions.
(a) COMMENCEMENT OF EXERCISE PERIOD. Options for the shares
subject to this Agreement may be exercised by Optionee on or after the dates on
which the right to exercise Options for such shares has vested, in accordance
with the following schedule, unless sooner terminated pursuant to the terms of
this Agreement, and subject to the right of accumulation provided for herein.
The right to exercise Options shall vest from time to time in accordance with
the following schedule. Options shall not be exercisable after _____________
(the "Expiration Date").
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<TABLE>
<CAPTION>
Year in Which Options Will Vest on the Number of Shares For
Anniversary Date of This Agreement Which Options Will Vest
- -------------------------------------------------------------------------------
<S> <C>
______
______
______
</TABLE>
Notwithstanding the preceding provisions of this subparagraph (a), in the event
(i) NIC shall not be the surviving corporation in any merger, consolidation, or
reorganization, (ii) of the acquisition by another corporation of all or
substantially all of the assets of NIC, or (iii) the liquidation or dissolution
of NEC, the Option granted hereunder shall become immediately exercisable to the
extent of all of the aggregate number of shares subject to this Option not
having been previously exercised or expired for a period commencing 30 days
immediately prior to and ending on the day immediately prior to such merger,
consolidation, reorganization or acquisition of all or substantially all of the
assets of NIC, or the liquidation or dissolution of NIC, but in no event later
than the time specified in paragraph (b) of this Section 3.1. In addition,
notwithstanding the preceding provisions of this subparagraph (a), in the event
Optionee's employment with NIC is involuntarily terminated other than "for
cause," as defined in his employment agreement, or death or disability, the
Option granted hereunder shall become immediately exercisable to the extent of
all of the aggregate number of shares subject to this Option not having been
previously exercised or expired.
(b) EMPLOYMENT REQUIREMENT. The Option shall be exercisable in
the manner set forth above during the lifetime of the Optionee only by the
Optionee and may not be exercisable by the Optionee unless at the time of
exercise the Optionee is an employee of NIC or of one of its subsidiary
corporations and shall have been continuously so employed since the Date of
Grant, except as follows:
(i) If the Optionee's employment with NIC or any of its
subsidiary corporations should be terminated "for cause" in accordance
with his employment agreement or if such Optionee should voluntarily
terminate such employment, the Option (irrespective of whether or not
such Option may then be exercisable) shall immediately terminate and be
forfeited with respect to any shares not already purchased by the
Optionee, and no payment shall be due from NIC to the Optionee on account
of such termination.
(ii) in the event of the death or disability of the
Optionee during the Optionee's employment with NIC or with any of its
subsidiary corporations, the Option shall be exercisable, in the event of
death, only by or on behalf of such person or persons to whom the
Optionee's rights under the Option shall have passed by the Optionee's
will or by the laws of descent and distribution, and, in the event of
either death or disability [x]
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<PAGE>
only if such Option is exercised prior to the expiration of one (1) year
after the date of the Optionee's death or disability (and in accordance
with all other terms of the Plan) or prior to the Expiration Date,
whichever shall first occur, and [y] only to the extent that the
Optionee was entitled to exercise such Option immediately prior to such
Optionee's death or disability.
(iii) In the event of the Optionee's termination of
employment with NIC or any of its subsidiary corporations for any reason
other than death, disability, on account of voluntary termination by the
Optionee, or for cause, the Option shall be exercisable [x] only if
exercised prior to the expiration of thirty (30) days after the date of
such termination or prior to the Expiration Date, whichever shall first
occur, and [y] only to the extent that the Optionee was entitled to
exercise the Option immediately prior to the date of such termination.
(c) EXERCISE. The Option granted hereunder shall be
exercisable at such times and in such amounts as defined in this Section 3.1 by
the giving of written notice of exercise to NIC, specifying the number of shares
to be purchased, by payment of the purchase price therefor by cash or other
shares of NIC Common Stock and by provision of such representations and
withholding agreements as shall be requested by NIC in accordance with Section 8
of the Plan.
ARTICLE IV
ADJUSTMENTS FOR MERGERS, REORGANIZATIONS
4.1 ADJUSTMENTS FOR MERGERS, REORGANIZATIONS, ETC. If NIC shall
become a party to any corporate merger, consolidation, major acquisition of
property for stock, separation, reorganization or liquidation, NIC shall have
power to make arrangements which shall be binding upon the Optionee for the
assumption of this Option by any surviving, continuing, successor or purchasing
corporation as the case may be (subject to any applicable provisions of the
Code) or the substitution of a new Option of comparable value for this Option;
PROVIDED, HOWEVER, that such Options shall not grant benefits in excess of those
permitted by Section 424(a) of the Code or by the corresponding provisions of
any future internal revenue law.
ARTICLE V
SECURITIES LAWS
5.1 INVESTMENT REPRESENTATION. Optionee represents and warrants that
he has acquired these Options for investment and not with a view to resale,
distribution, offering, transferring, mortgaging, pledging, hypothecating, or
otherwise disposing of such shares under circumstances which would constitute a
public offering or distribution under the Securities Act of 1933 or the
securities laws of any state (collectively, "distribution"), and agrees that he
will acquire all shares provided for hereunder for investment and not with a
view to distribution. Upon each exercise of these Options, Optionee will
deliver to the Corporation a written representation to such effect in a form
prepared by counsel to NIC. Certificates for the shares acquired by the
employee under these Options shall bear a legend substantially in the following
form:
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<PAGE>
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY
TO NIC THAT REGISTRATION IS NOT REQUIRED UNDER SAID
ACT.
5.2 RESTRICTIONS UNDER SECURITIES LAWS. These Options shall be
subject to the requirement that if at any time NIC determines that the listing,
registration or qualification of the shares covered thereby upon any securities
exchange or under state or federal law or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the granting of these Options or the issue or purchase of
shares thereunder, these Options may not be exercised in whole or in part unless
and until such listing, registration, qualification, consent or approval shall
have been effective or obtained free of any conditions not acceptable to NIC.
ARTICLE VI
MISCELLANEOUS
6.1 NOT AN EMPLOYMENT CONTRACT. Nothing herein contained shall he
construed as requiring NIC or any subsidiary corporation to employ the Optionee
for any specific period.
6.2 NONASSIGNABILITY. Except as otherwise herein provided, the Option
herein granted and the rights and privileges conferred hereby shall not be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment, or
similar process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of the Option herein granted, or of any right or privilege
conferred hereby, or upon the levy of any attachment or similar process upon the
rights and privileges conferred hereby, contrary to the provisions hereof, this
Option and the rights and privileges conferred hereby shall immediately become
null and void.
6.3 RIGHTS OF OPTIONEE. The Optionee shall not be, nor shall the
Optionee have any of the rights or privileges of, a stockholder of NIC in
respect of any of the shares issuable upon the exercise of this Option unless
and until such shares have been purchased.
6.4 NOTICE. Any notice required to be given under the terms of this
Agreement shall be addressed to NIC in care of its president at its offices at
National Information Consortium, Inc., 12 Corporate Woods, 10975 Benson Street,
Suite 390, Overland Park, Kansas 66210, Attention: James B. Dodd, and any notice
to be given to the Optionee shall be addressed to Optionee at the address set
forth on the employee records of NIC. Either party hereto may from
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<PAGE>
time to time change the address to which notices are to be sent to such party
by giving written notice of such change to the other party. Any notice
hereunder shall be deemed to have been duly given if and when addressed as
aforesaid, registered and deposited, postage and registry fee prepaid, in a
post office regularly maintained by the United States Government.
6.5 BINDING EFFECT. This Agreement shall bind, and, except as
specifically provided herein, shall inure to the benefit of the respective
heirs, legal representatives, successors and assigns of the parties hereto.
6.6 WITHHOLDING. The Optionee and each successor agree to make
appropriate arrangements with NIC or its subsidiary corporations for
satisfaction of any applicable federal, state or local income tax withholding
requirements or like requirements, including, if requested, the payment at the
time of a "disqualifying disposition" (as defined in the Code) of stock acquired
pursuant to the exercise of an Option of all such taxes and requirements
required in order to allow a federal income tax deduction on account of any such
disqualifying disposition.
6.7 OPTIONS SUBJECT TO THE PLAN. The Option hereby granted is subject
to the Plan The terms and provisions of the Plan as in effect on the Date of
Grant hereof are hereby incorporated by reference. In the event of a conflict
between any term or provision contained in this Option Agreement and a term or
provision of the Plan, the applicable terms and provisions of the Plan will
prevail.
6.8 GOVERNING LAW. This Agreement and the rights of all persons
claiming hereunder shall be construed and determined in accordance with the laws
of the State of Colorado.
6.9 AVAILABILITY OF INFORMATION. We have filed with the Securities
Exchange Commission in Washington, D.C. a registration statement on Form S-8
under the Securities Act of 1933 with respect to the common stock offered in
our initial public offering which includes any grants of stock made under
this Plan. The Form S-8 incorporates by reference the registration statements
on Form S-1 and Form 8-A. You may obtain copies of these documents (the S-1,
S-8 and 8-A) without charge by contacting National Information Consortium,
Inc., 12 Corporate Woods, 10975 Benson Street, Suite 390, Overland, Kansas
66210, ATT: James B. Dodd, (877) 234-3468. You may also obtain copies of the
Plan by contacting the same address.
[Remainder of this page intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, NIC has caused this Agreement to be executed by its
officers thereunto duly authorized and its corporate seal to be hereunto
affixed, and the Optionee has hereunto set his hand as of the day and year first
above written.
NATIONAL INFORMATION CONSORTIUM, INC.
By:
--------------------------------------
James B. Dodd, President
"OPTIONEE"
-----------------------------------------
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<PAGE>
FEDERAL INCOME TAX CONSEQUENCES OF INCENTIVE STOCK OPTIONS
THE FEDERAL INCOME TAX CONSEQUENCES DESCRIBED BELOW ARE FOR GENERAL
INFORMATION ONLY. NO INFORMATION IS PROVIDED AS TO STATE, LOCAL OR FOREIGN TAX
CONSEQUENCES OF THE ACQUISITION OR EXERCISE OF OPTIONS GRANTED UNDER THE PLAN OR
THE SALE OF SHARES OF COMMON STOCK ACQUIRED UPON SUCH EXERCISE. EACH OPTIONEE
SHOULD CONSULT HIS OR HER OWN TAX ADVISOR AS TO THE SPECIFIC FEDERAL INCOME TAX
CONSEQUENCES AND AS TO THE SPECIFIC CONSEQUENCES UNDER STATE, LOCAL AND FOREIGN
TAX LAWS.
The option or options you have been granted under the Plan are intended
to qualify as incentive stock options" under section 422(b) of the Internal
Revenue Code of 1986 (the "Code"). Generally, an optionee incurs no Federal
income tax consequences either for regular Federal income tax purposes or for
alternative minimum tax purposes at the time of a grant of an incentive stock
option. In addition, an optionee generally incurs no regular Federal income tax
consequences upon exercise of an incentive stock option. However, as explained
below, an optionee may incur alternative minimum tax consequences upon the
exercise of an incentive stock option.
Upon the sale of stock received pursuant to the exercise of an option
granted under an incentive stock option plan ("Statutory Option Stock"), other
than a sale of Statutory Option Stock which is a "disqualifying disposition," as
defined below, an optionee will recognize either a taxable gain equal to the
excess of the amount realized from the sale over the optionee's basis in the
shares, or a taxable loss equal to the excess of the optionee's basis in the
shares over the amount realized from the sale. The basis in the Statutory Option
Stock for regular Federal income tax purposes will be the amount paid for those
shares, or, if the option was exercised by exchanging shares of Common Stock for
the new shares, the basis in the shares received upon exercise generally will be
the same as the basis in the shares surrendered in the exchange; however, as
explained below special basis rules will apply if the stock surrendered was
received by the optionee pursuant to the exercise of another incentive stock
option, qualified stock option. restricted stock option or an option granted
under an employee stock purchase plan.
Gain or loss from the sale of Statutory Option Stock other than a sale of
Statutory Option Stock which is a "disqualifying disposition," as defined below,
will be considered gain or loss from the sale of a capital asset if the shares
are held for investment purposes. Such gain or loss will be long term or short
term depending upon the optionee's holding period for such Statutory Option
Stock, Losses from sales of capital assets are subject to limitations based upon
the amount and nature of the taxpayer's other income, deductions, gains and
losses.
A "disqualifying disposition" of Statutory Option Stock occurs if the
optionee disposes of such shares within two years from the date of the granting
of the underlying option or within one year after the exercise of the underlying
option, unless such disposition is (i) a transfer from a
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decedent to an estate or a transfer by bequest or inheritance, (ii) an
exchange to which section 354, section 355, section 356 or section 1036 of
the Code (or so much of' section 1031 as relates to section 1036) applies, or
(iii) a mere pledge or hypothecation. In the event of a "disqualifying
disposition," the optionee generally will realize ordinary income in the year
of the "disqualifying disposition" in an amount equal to the difference
between the fair market value of the Statutory Option Stock on the date of
exercise and the amount paid for such Statutory Option Stock. If the
disposition is one in which a loss, if sustained, would be recognized by the
optionee, the amount recognized as ordinary income in the preceding sentence
is limited to the amount by which the amount realized on the sale of the
Statutory Option Stock in the "disqualifying disposition" exceeds the
adjusted basis of the shares sold. If the amount realized from the sale of
the Statutory Option Stock exceeds the fir market value of the shares on the
date of exercise, the excess will be treated as a gain which is taxed under
the rules described in the preceding paragraph.
If an optionee exercises an incentive stock option and pays the option
price for the shares by exchanging shares of Common Stock already held by the
optionee, in general no gain or loss will be recognized upon the exchange of
shares pursuant to the exercise of an option. However, if an optionee exercises
an option by exchanging shares previously acquired by such optionee pursuant to
the exercise of another option or pursuant to the exercise of a qualified stock
option, restricted stock option or an option granted under an employee stock
purchase plan, gain or loss will be recognized on the exchange unless the
applicable holding period requirements under the Code for such surrendered stock
are met. Generally, holding period requirements with respect to any surrendered
stock will be met if the stock surrendered has been held for at least two years
from the date of the grant of the option pursuant to which such surrendered
stock was acquired and for at least one year from the date of the exercise of
the option pursuant to which such surrendered stock was acquired.
Upon expiration of any option, no taxable income will be recognized by
the optionee whose option has expired and was not exercised.
In general, the issuance or exercise of options granted under an
incentive stock option plan does not result in any Federal income tax
consequences to the company granting the option (the "Company"). If the optionee
makes a "disqualifying disposition," however, the Company may deduct an amount
equal to the amount required to be included in the gross income of the optionee
as a result of such disqualifying disposition, provided the Company satisfies
applicable information reporting and income and payroll tax withholding
requirements.
If the Statutory Option Stock is freely transferable or not subject to
a substantial risk of forfeiture when received, then the excess, if any, of
the fair market value of such stock (determined without regard to any
restriction other than a restriction which by its term will never lapse) over
the amount paid for such stock is included in the determination of the
optionee's alternative minimum taxable income in the year of exercise. If the
stock received pursuant to the exercise of an option granted is not freely
transferable and is subject to a substantial risk of forfeiture, then the
excess, if any, of the fair market value of such stock (determined as above)
over the amount paid for such stock is included in the determination of the
optionee's alternative
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<PAGE>
minimum taxable income in the year in which such stock becomes freely
transferable or is no longer subject to a substantial risk of forfeiture,
whichever of said two events first occurs. Special rules apply for purposes
of determining whether stock received pursuant to the exercise of an option
granted is freely transferable or subject to a substantial risk of
forfeiture. These rules may impact the determination of alternative minimum
taxable income for optionees whose sale of such stock at a profit could
subject the optionee to suit under section 16(b) of the Exchange Act and in
certain other circumstances.
Solely for purposes of computing the optionees alternative minimum
taxable income in the year the Statutory Option Stock is sold, the optionee's
basis in the shares of Statutory Option Stock sold is increased by the amount
included in the determination of the optionee's alternative minimum taxable
income with respect to that Statutory Option Stock under the rules described in
the preceding paragraph. If Statutory Option Stock is sold in the same taxable
year in which the optionee was required to include some amount in the
determination of the optionee's alternative minimum taxable income under the
rules described in the preceding paragraph, then the amount to be included in
the determination of the optionee's alternative minimum taxable income cannot
exceed the excess (if any) of the amount realized on the sale less the
optionee's adjusted basis in such stock.
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EXHIBIT 4.5
NATIONAL INFORMATION CONSORTIUM, INC.
EMPLOYEE STOCK PURCHASE PLAN OFFERING
1. GRANT; OFFERING DATE.
(a) The Board of Directors of National Information Consortium, Inc.
(the "Company"), pursuant to the Company's Employee Stock Purchase Plan (the
"Plan"), hereby authorizes the grant of rights to purchase shares of the
common stock of the Company ("Common Stock") to all Eligible Employees (an
"Offering"). The first Offering shall begin simultaneously with the initial
public offering of the Company's Common Stock, or the effective date of such
initial public offering (the "Effective Date") and end on June 30, 2000
("Initial Offering"). Thereafter, an Offering shall begin on July 1,
annually, beginning with calendar year 2000, and shall end on the day prior
to the anniversary of its Offering Date. The first day of an Offering is that
Offering's "Offering Date." If an Offering Date does not fall on a day during
which the Company's Common Stock is actively traded, then the Offering Date
shall be the next subsequent day during which the Company's Common Stock is
actively traded.
(b) Prior to the commencement of any Offering, the Board of Directors
(or the Committee described in subparagraph 3 of the Plan, if any) may change
any or all terms of such Offering and any subsequent Offerings. The granting
of rights pursuant to each Offering hereunder shall occur on each respective
Offering Date unless, prior to such date (a) the Board of Directors (or such
Committee) determines that such Offering shall not occur, or (b) no shares
remain available for issuance under the Plan in connection with the Offering.
2. ELIGIBLE EMPLOYEES.
(a) All employees of the Company and each of its Affiliates (as defined
in the Plan) incorporated in the United States shall be granted rights to
purchase Common Stock under each Offering on the Offering Date of such
Offering, (an "Eligible Employee"). Notwithstanding the foregoing, no
employee who is disqualified by subparagraph 5(b) or 5(d) of the Plan shall
be an Eligible Employee or be granted rights under an Offering. An employee
need NOT otherwise satisfy the employment requirements of subparagraph 5(a)
to be an Eligible Employee granted rights under the Offering.
(b) Notwithstanding the foregoing, each person who first becomes an
Eligible Employee during any Offering will, on the day after the FIRST
Purchase Date during that Offering in which such person FIRST satisfies the
service requirement to become an Eligible Employee, receive a right under
such Offering, which right shall thereafter be deemed to be a part of the
Offering. Such right shall have the same characteristics as any rights
originally granted under the Offering except that:
<PAGE>
(1) the date on which such right is granted shall be the "Offering
Date" of such right for all purposes, including determination of the exercise
price of such right; and
(2) the Offering for such right shall begin on its Offering Date
and end coincident with the end of the ongoing Offering.
3. RIGHTS.
(a) Subject to the limitations contained herein and in the Plan, on
each Offering Date each Eligible Employee shall be granted the right to
purchase the number of shares of Common Stock purchasable with up to fifteen
percent (15%) of such employee's Earnings paid during the period of such
Offering beginning after such Eligible Employee first commences
participation; provided, however, that no employee may purchase Common Stock
in a particular year with more than fifteen percent (15%) of such employee's
Earnings in such year under all ongoing Offerings under the Plan and all
other Company plans intended to qualify as "employee stock purchase plans"
under Section 423 of the Internal Revenue Code of 1986, as amended (the
"Code"). "Earnings" for this purpose means an employee's regular salary or
wages (including amounts the employee elected to defer, but which would
otherwise have been paid under a 401(k) plan or similar arrangement) and
commissions, overtime pay, bonuses and incentive pay. The maximum number of
shares of Common Stock an Eligible Employee may purchase on any Purchase Date
in an Offering shall be such number of shares as has a fair market value
(determined as of the Offering Date for such Offering) equal to (x) $25,000
multiplied by the number of calendar years in which the right under such
Offering has been outstanding at any time, minus (y) the fair market value of
any other shares of Common Stock (determined as of the relevant Offering Date
with respect to such shares) which, for purposes of the limitation of Section
423(b)(8) of the Code, are attributed to any of such calendar years in which
the right is outstanding. The amount in clause (y) of the previous sentence
shall be determined in accordance with regulations applicable under Section
423(b)(8) of the Code based on (i) the number of shares previously purchased
with respect to such calendar years pursuant to such Offering or any other
Offering under the Plan, or pursuant to any other Company plans intended to
qualify as "employee stock purchase plans" under Section 423 of the Code, and
(ii) the number of shares subject to other rights outstanding on the Offering
Date for such Offering pursuant to the Plan or any other such Company plan.
(b) The maximum aggregate number of shares available to be purchased by
all Eligible Employees under an Offering shall be the number of shares
remaining available under the Plan on the Offering Date. If the aggregate
purchase of shares of Common Stock upon exercise of rights granted under the
Offering would exceed the maximum aggregate number of shares available, the
Board shall make a pro rata allocation of the shares available in a uniform
and equitable manner.
4. PURCHASE PRICE.
The purchase price of the Common Stock under the Offering shall be the
lesser of eighty-five percent (85%) of the fair market value of the Common
Stock on the Offering Date or eighty-five percent (85%) of the fair market
value of the Common Stock on the Purchase Date, in each case rounded up to
the nearest whole cent per share. For the Initial Offering, the fair market
value
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of the Common Stock at the time when the Offering commences shall be the
price per share at which shares of Common Stock are first sold to the public
in the Company's initial public offering.
5. PARTICIPATION.
(a) Except as otherwise provided in this paragraph 5, an Eligible
Employee may elect to participate in an Offering only at the beginning of the
Offering; provided, however, that a person who first becomes an Eligible
Employee may elect to participate at the Offering Date applicable to such
Eligible Employee as determined in accordance with subparagraph 2(b). An
Eligible Employee shall become a participant in an Offering by delivering an
agreement authorizing payroll deductions. Such deductions may be in whole
percentages only, with a minimum percentage of one percent (1%), and a
maximum percentage of fifteen percent (15%). A participant may not make
additional payments into his or her account. The agreement shall be made on
such enrollment form as the Company provides, and must be delivered to the
Company before the applicable Offering Date to be effective for that Offering
(or the remaining portion of that Offering), unless a later time for filing
the enrollment form is set by the Board for all Eligible Employees with
respect to a given Offering Date. As to the Initial Offering, the time for
filing an enrollment form and commencing participation for individuals who
are Eligible Employees on the Offering Date for the Initial Offering shall be
determined by the Company and communicated to such Eligible Employees.
(b) A participant may not increase his or her participation level
during the course of an Offering. A participant may reduce (including to
zero) his or her participation level only once during any six month period
ending on a Purchase Date (except not during the ten (10) days immediately
preceding a Purchase Date), by delivering a notice to the Company in such
form and at such time as the Company provides. Notwithstanding the foregoing,
a participant may withdraw from an Offering and receive his or her
accumulated payroll deductions from the Offering (reduced to the extent, if
any, such deductions have been used to acquire Common Stock for the
participant on any prior Purchase Dates), without interest, or reduce his or
her participation percentage to zero (0), at any time prior to the end of the
Offering, excluding only each ten (10) day period immediately preceding a
Purchase Date (or such shorter period of time determined by the Company and
communicated to participants) by delivering a withdrawal notice to the
Company in such form as the Company provides.
6. PURCHASES.
Subject to the limitations contained herein, on each Purchase Date, each
participant's accumulated payroll deductions (without any increase for
interest) shall be applied to the purchase of whole shares of Common Stock,
up to the maximum number of shares permitted under the Plan and the Offering.
"Purchase Date" shall be defined as each December 31 and June 30 (except that
June 30, 1999 shall not constitute a Purchase Date) (i.e., the first Purchase
Date of the Initial Offering shall be December 31, 1999 and the next Purchase
Date shall be June 30, 2000). If a Purchase Date does not fall on a day
during which the Company's Common Stock is actively traded then the Purchase
Date shall be the nearest prior day during which the Company's Common Stock
is actively traded.
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7. NOTICES AND AGREEMENTS.
Any notices or agreements provided for in an Offering or the Plan shall
be given in writing, in a form provided by the Company, and unless
specifically provided for in the Plan or this Offering shall be deemed
effectively given upon receipt or, in the case of notices and agreements
delivered by the Company, five (5) days after deposit in the United States
mail, postage prepaid.
8. EXERCISE CONTINGENT ON SHAREHOLDER APPROVAL.
The rights granted under an Offering are subject to the approval of the
Plan by the shareholders as required for the Plan to obtain employee stock
purchase plan treatment under Section 423 of the Code and to comply with the
requirements of Rule 16b-3 promulgated under the Securities Exchange Act of
1934, as amended.
9. OFFERING SUBJECT TO PLAN.
Each Offering is subject to all the provisions of the Plan, and its
provisions are hereby made a part of the Offering, and is further subject to
all interpretations, amendments, rules and regulations which may from time to
time be promulgated and adopted pursuant to the Plan. In the event of any
conflict between the provisions of an Offering and those of the Plan
(including interpretations, amendments, rules and regulations which may from
time to time be promulgated and adopted pursuant to the Plan), the provisions
of the Plan shall control.
10. AVAILABILITY OF INFORMATION.
We have filed with the Securities Exchange Commission in Washington,
D.C. a registration statement on Form S-8 under the Securities Act of 1933
with respect to the common stock offered in our initial public offering which
includes any stock purchased pursuant this Plan. The Form S-8 incorporates
by reference the registration statements on Form S-1 and Form 8-A. You may
obtain copies of these documents (the S-1, S-8 and 8-A) without charge by
contacting National Information Consortium, Inc., 12 Corporate Woods, 10975
Benson Street, Suite 390, Overland, Kansas 66210, ATT: James B. Dodd, (877)
234-3468. You may also obtain copies of the Plan by contacting the same
address.
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EXHIBIT 5
July 19, 1999
National Information Consortium, Inc.
12 Corporate Woods
10975 Benson Street, Suite 390
Overland Park, Kansas 66210
Ladies and Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") which is expected to be
filed by National Information Consortium, Inc. (the "Company") on or about
July 19, 1999, with respect to the offer and sale of 12,500,000 shares of the
Company's common stock, no par value ("Company Stock"), issuable under the
Amended and Restated 1998 Stock Option Plan and the Employee Stock Purchase
Plan (the "Plans") as described in the Registration Statement.
We have examined such records and documents and have made such
investigations of law as we have deemed necessary under the circumstances.
Based on that examination and investigation, it is our opinion that the
shares of Company Stock referred to above will be, when sold in accordance
with the Plans and in the manner described in the Registration Statement,
validly issued, fully paid and non-assessable.
We consent to the use in the Registration Statement of our name and the
statement with respect to our firm under the heading of "Interests of Named
Experts and Counsel."
Sincerely yours,
/s/ ROTHGERBER JOHNSON & LYONS LLP
<PAGE>
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 June 16, 1999, except as to the
second paragraph of Note 8 which is as of July 14, 1999, relating to the
consolidated financial statements of National Information Consortium, Inc.
(the "Company"), and of our reports dated May 6, 1999, relating to the
financial statements of Indian@ Interactive, Inc., Kansas Information
Consortium, Inc., Nebrask@ Interactive, Inc. and Arkansas Information
Consortium, Inc., which appear in the Company's Registration Statement on
Form S-1 (File No. 333-77939).
/s/ PricewaterhouseCoopers LLP
Kansas City, Missouri
July 16, 1999
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose signatures
appear below constitute and appoint Herbert H. Davis and Karen L. Witt, and
each of them, as their true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for them and in their 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
sign any registration statement for the same offering covered by the
Registration Statement that is to be effective upon filing pursuant to Rule
462(a) promulgated under the Securities Act of 1988 and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith and about the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ Jeffrey S. Fraser
--------------------------------
Jeffrey S. Fraser
Chairman and Chief Executive Officer
/s/ James B. Dodd
--------------------------------
James B. Dodd
President and Chief Operating Officer
/s/ Kevin C. Childress
--------------------------------
Kevin C. Childress
Chief Financial Officer
/s/ John L. Bunce, Jr.
--------------------------------
John L. Bunce, Jr.
Director
/s/ Daniel J. Evans
--------------------------------
Daniel J. Evans
Director
<PAGE>
/s/ Ross C. Hartley
--------------------------------
Ross C. Hartley
Director
/s/ Patrick J. Healy
--------------------------------
Patrick J. Healy
Director
--------------------------------
Peter Wilson
Director
