<PAGE> 1
As filed with the Securities and Exchange Commission on April 7, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EDISON SCHOOLS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3915075
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
521 FIFTH AVENUE, 15TH FLOOR, NEW YORK, NY 10175
(Address of Principal Executive Offices) (Zip Code)
NON-QUALIFIED STOCK OPTIONS
(Full title of the Plan)
H. CHRISTOPHER WHITTLE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
EDISON SCHOOLS INC.
521 FIFTH AVENUE,
15TH FLOOR,
NEW YORK, NY 10175
(Name and address of agent for service)
(212) 419-1600
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Number of Proposed maximum Proposed maximum Amount of
Title of securities Shares to offering price aggregate offering registration
to be registered be Registered per share price fee
<S> <C> <C> <C> <C>
Class A Common Stock, $.01 par value 7,903,772 shares(1) $21.68 (2) $171,353,770 $45,237
Class B Common Stock, $.01 par value (3) 790,412 shares N/A N/A N/A
</TABLE>
(1) Includes 790,412 shares of Class A Common Stock issuable upon
conversion of the 790,412 shares of Class B Common Stock registered
pursuant to this Registration Statement.
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(2) Calculated on the basis of the weighted average exercise price of the
outstanding non-qualified stock options to purchase shares of Class A
Common Stock and Class B Common Stock.
(3) The Class B Common Stock is not listed on the Nasdaq National Market.
Each share of Class B Common Stock will automatically convert into one
share of Class A Common Stock at the option of the holder or upon the
sale or transfer of the Class B Common Stock, with certain exceptions.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to recipients of Non-Qualified Stock Options from Edison Schools Inc. (the
"Registrant") pursuant to Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant became subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on November 11, 1999 and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission. The following documents, which are on file
with the Securities and Exchange Commission, are incorporated in this
Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act that contains audited financial statements
for the Registrant's latest fiscal year for which such statements have been
filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (a) above.
(c) The description of the Class A Common Stock $.01 par value per
share, and the Class B Common Stock, $.01 par value per share, of the
Registrant, which is contained in a registration statement filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares offered hereby have
been sold or which deregisters all shares 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 of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for the purposes of this Registration
Statement to the extent a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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.
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he or she is or is threatened
to be made a party by reason of such position, if such person shall have acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his or her conduct
was unlawful; provided that, in the case of actions brought by or in the right
of the corporation, no indemnification shall be made with respect to any matter
as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Article EIGHTH of the Registrant's Sixth Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation") provides that
no director of the Registrant shall be personally liable to the Registrant or
its stockholders for monetary damages for any breach of fiduciary duty as a
director, except to the extent that the Delaware General Corporation Law
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty.
Article NINTH of the Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the Registrant
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant) brought,
or threatened to be brought, against him or her by virtue of his or her position
as, or agreement to become, a director or officer of the Registrant or by virtue
of his or her serving, or agreeing to serve, at the request of the Registrant,
as a director, officer, or trustee of, or in a similar capacity with, a
corporation, trust or other enterprise, if he or she acted in good faith and in
a manner he or she reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful
and (b) shall be indemnified by the Registrant against all expenses (including
attorneys' fees) and amounts paid in settlement incurred in connection with any
action by or in the right of the Registrant brought, or threatened to be
brought, against him or her by virtue of his or her position as, or agreement to
become, a director or officer of the Registrant or by virtue of his or her
serving, or agreeing to serve, at the request of the Registrant, as a director,
officer, or trustee of, or in a similar capacity with, a corporation, trust or
other enterprise, if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, except that no indemnification shall be made with respect to any
matter as to which such person shall have been adjudged to be liable to the
Registrant, unless a court determines that, despite such adjudication but in
view of all of the circumstances, he or she is entitled to indemnification of
such expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he or she is required
to be indemnified by the Registrant against all expenses (including attorneys'
fees) incurred in connection therewith. Expenses shall be advanced to a director
or officer at his or her request, provided that he or she undertakes to repay
the amount advanced if it is ultimately determined that he or she is not
entitled to indemnification for such expenses.
The Registrant is required to provide the indemnification described
herein unless the officer or director has not met the applicable standard of
conduct required for indemnification. Whether the applicable standard of conduct
has been met shall be determined in each instance by (a) a majority vote of the
directors of the Registrant consisting of persons who are not at that time
parties to the action, suit or proceeding in question ("disinterested
directors"), whether or not a quorum, (b) a majority vote of a committee of
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disinterested directors designated by majority vote of disinterested directors,
whether or not a quorum, (c) a majority vote of a quorum of the outstanding
shares of stock of all classes entitled to vote for directors, voting as a
single class, which quorum shall consist of stockholders who are not at that
time parties to the action, suit or proceeding in question, (d) independent
legal counsel (who may, to the extent permitted by law, be regular legal counsel
to the Registrant), or (e) a court of competent jurisdiction. In the event of a
determination that the director or officer did not meet the applicable standard
of conduct required for indemnification, or if the Registrant fails to make a
disposition within 60 days after written request for indemnification or
advancement of expenses to the Registrant is made by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
Article NINTH of the Certificate of Incorporation further provides that
the indemnification and advancement of expenses provided by this Article shall
not be deemed exclusive of any other rights to which an officer or director
seeking indemnification or advancement of expenses may be entitled under any law
(common or statutory), agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in any other capacity while holding office for the Registrant, and
shall continue as to a person who has ceased to be a director or officer, and
shall inure to the benefit of the estate, heirs, executors and administrators of
such person. Nothing contained in the Article shall be deemed to prohibit, and
the Registrant is specifically authorized to enter into, agreements with
officers and directors providing indemnification rights and procedures different
from those set forth in the Article. In addition, the Registrant may, to the
extent authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the Registrant or other
persons serving the Registrant and such rights may be equivalent to, or greater
or less than, those set forth in this Article.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is attached hereto
and incorporated herein by reference.
Item 9. Undertakings.
1. The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(b) 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 securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(c) 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.
2. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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 issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York, New York on the 5th day of April, 2000.
EDISON SCHOOLS INC.
By: /s/ H. Christopher Whittle
_______________________________________
H. Christopher Whittle
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Edison Schools Inc.,
hereby severally constitute H. Christopher Whittle, Laura K. Eshbaugh, David
Sylvester and Brent B. Siler, 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, any and all amendments to the
Registration Statement on Form S-8 filed herewith, and generally to do all such
things in our names and behalf in our capacities as officers and directors to
enable Edison Schools Inc. to comply with all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by said attorneys, or any of them, to any and all amendments to said
Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ H. Christopher Whittle
__________________________ President, Chief Executive April 5, 2000
H. Christopher Whittle Officer and Director (Principal
Executive Officer)
/s/ James L. Starr
___________________________ Executive Vice President April 5, 2000
James L. Starr and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Virginia G. Bonker
___________________________ Director April 4, 2000
Virginia G. Bonker
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Laura K. Eshbaugh
___________________________ Director April 5, 2000
Laura K. Eshbaugh
/s/ Robert Finzi
___________________________ Director April 5, 2000
Robert Finzi
/s/ John B. Fullerton
___________________________ Director April 6, 2000
John B. Fullerton
/s/ Benno C. Schmidt, Jr.
___________________________ Director April 5, 2000
Benno C. Schmidt, Jr.
/s/ William F. Weld
___________________________ Director April 5, 2000
William F. Weld
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
3.1* Sixth Amended and Restated Certificate of Incorporation of the
Registrant.
3.2* Second Amended and Restated By-Laws of the Registrant.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
* Incorporated by reference herein from Exhibits to the Registrant's
Registration Statement on Form S-1 (File No. 333-84177) as declared
effective by the Commission on November 10, 1999.
<PAGE> 1
Exhibit 5.1
Hale and Dorr LLP 1455
Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 942-8400/Fax (202) 942-8484
April 7, 2000
Edison Schools Inc.
521 Fifth Avenue
15th Floor
New York, New York, 10175
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), for the registration of 7,113,360
shares of Class A Common Stock, $.01 par value per share, and 790,412 shares of
Class B Common Stock, $.01 par value per share (collectively, the "Shares"), of
Edison Schools Inc., a Delaware corporation (the "Company"), issuable upon the
exercise of nonstatutory stock options granted by the Company to certain
optionees pursuant to written nonstatutory stock option agreements executed
between the Company and such optionees.
We have examined the Sixth Amended and Restated Certificate of
Incorporation and the Second Amended and Restated By-Laws of the Company, each
as amended and restated to date, and originals, or copies certified to our
satisfaction, of all pertinent records of the meetings of the directors and
stockholders of the Company, the Registration Statement and such other documents
relating to the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or
jurisdiction other than the Delaware General Corporation Law statute and the
federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and the Shares, when issued and
paid for in accordance with the terms of the applicable nonstatutory stock
option agreements, will be validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
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Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
<PAGE> 1
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 August 13, 1999, except for footnote
No. 15(a) which is dated October 5, 1999 and 15(b) which is dated October 15,
1999, relating to the financial statements which appear in Form S-1 (file No.
333-84177) filed November 17, 1999 of Edison Schools Inc.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Melville, NY
March 16, 2000
++
