As filed with the Securities and Exchange Commission on September 27, 1995
Registration No. 33-________________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
NATIONAL EDUCATION CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware I.R.S. No. 95-2774428
(State of incorporation) (I.R.S. Employer Identification No.)
18400 Von Karman Avenue, Irvine, California 92715-1594
(Address of principal executive offices)
Amended and Restated 1991 Directors' Stock Option and Award Plan
Amended and Restated 1990 Stock Option and Incentive Plan
(Full Title of the Plans)
<TABLE>
<S> <C>
PHILIP C. MAYNARD Copy to:
Vice President, Secretary and General Counsel RITA BURNS, ESQ.
National Education Corporation Irell & Manella
18400 Von Karman Avenue 1800 Avenue of the Stars
Irvine, California 92715 Suite 900
(714) 474-9400 Los Angeles, California 90067-4276
(Name, Address and Telephone Number, Including Area (310) 277-1010
Code, of Registrant's Agent for Service)
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Amount to be Offering Price Aggregate Registration Fee
Securities to be Registered Registered <F1> Per Share <F2> Offering Price <F2> <F4>
--------------------------- --------------- ---------------- ------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 3,480,000 <F3> $7.8125 $27,187,500 $9,375
1<PAGE>
<PAGE>
<FN>
<F1>
In addition, pursuant to Rule 416 under the Securities Act of 1933 (the
"Securities Act"), this Registration Statement also covers an indeterminate
number of shares as may become issuable by reason of the anti-dilution
provisions of the Plans.
<F2>
Pursuant to Rule 457(h) under the Securities Act, estimated solely for the
purpose of calculating the registration fee based upon the average high and low
sales prices of the Common Stock of Registrant on the New York Stock Exchange
on September 20, 1995 (a date five business days prior to this filing).
<F3>
Includes 160,000 shares issuable under the Amended and Restated 1991 Directors'
Stock Option and Award Plan (the "Directors' Plan") and 3,320,000 shares
issuable under the Amended and Restated 1990 Stock Option and Incentive Plan(the
"1990 Plan") (estimated requirement through the termination of the Plan in the
year 2000) and excludes an aggregate 400,000 shares and 2,000,000 shares,
respectively, issuable under the Directors' Plan and the 1990 Plan which were
previously registered under the Securities Act on Registrant's Forms S-8 (No.
33-43850 and No. 33-35404) filed on November 8, 1991 and June 14, 1990,
respectively.
<F4>
Pursuant to Note E to General Instructions to Form S-8, the filing fee is being
paid with respect only to the additional shares being registered hereby and
excludes any filing fee with respect to the 2,400,000 issuable under the
Registrant's Plans previously registered.
</FN>
</TABLE>
Pursuant to Note E to General Instructions to Form S-8, the contents of
Registrant's Registration Statement on Form S-8 (No. 33-43850 registering
400,000 shares under the 1991 Directors' Stock Option and Award Plan and its
Registration Statement on Form S-8 (No. 33-35404) registering 2,000,000 shares
under its 1990 Stock Option and Incentive Plan are hereby incorporated herein
by reference.
2<PAGE>
<PAGE>
NATIONAL EDUCATION CORPORATION AND SUBSIDIARIES
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act 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.
The documents listed in (a) through (c) below are incorporated by
reference in this Registration Statement on Form S-8. In addition, all
documents subsequently filed by Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior
to the filing of a post-effective amendment that indicates that all securities
offered have been sold or that deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be part hereof from the date of filing of such documents.
(a) Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994;
(b) All other reports filed by the Registrant since December 31, 1994
with the Securities and Exchange Commission pursuant to Section
13 or 15(d) of the Exchange Act; and
(c) The description of the Registrant's capital stock contained in
the registration statement filed on Form S-3 dated May 8, 1986
filed with the Securities and Exchange Commission (File No.
33-5552) under the Act, as supplemented by the description of the
preferred stock purchase rights issued under the National
Education Corporation Rights Agreement filed with the Commission
in the Registrant's Current Report on Form 8-K dated October 29,
1986, including any amendments or reports filed for the purpose
of updating such descriptions.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is
incorporated or deemed to be incorporated herein by reference modifies or
supersedes such prior 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.
3<PAGE>
<PAGE>
NATIONAL EDUCATION CORPORATION AND SUBSIDIARIES
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation law empowers a
corporation to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he or she is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise (other
than a suit by or in the right of the corporation). In any case, a corporation
may indemnify against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified 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, with respect to any criminal action or
proceeding, had no cause to believe his or her conduct was unlawful. In the
case of an action by or in the right of the corporation, no indemnification may
be made in respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was brought
shall determine that despite the adjudication of liability, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper. Section 145 further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to above or in the defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
The Bylaws of the Registrant provide, in effect, that, to the extent
and under the circumstances permitted by Section 145 of the Delaware General
Corporation Law and subject to certain conditions set forth in the Bylaws, the
Registrant shall indemnify any person who was or is a party or is threatened to
be made a party to any action, suit or proceeding of the type described above
by reason of the fact that he or she is or was a director, officer, employee or
agent of the Registrant, or is or was serving at the request of the Registrant
as director, officer, employee or agent of another corporation or enterprise.
The Registrant has entered into Indemnification Agreements with each of its
directors and executive officers providing for indemnification of such persons
in accordance with the Bylaws.
The Registrant has purchased insurance policies which pay, on behalf
of any of its directors or officers, any loss arising out of any claim or claims
made against him or her by reason of any wrongful act taken, omitted or
attempted by him or her in his or her capacity as such, including, among other
things, any misleading statement or omission or any other matter claimed against
him or her solely by reason of being a director or officer.
4<PAGE>
<PAGE>
NATIONAL EDUCATION CORPORATION AND SUBSIDIARIES
As permitted by the Delaware General Corporation Law, the Restated
Certificate of Incorporation of the Registrant limits the personal liability of
the Registrant's directors for violations of their fiduciary duty. This
eliminates each director's liability to the Registrant or its stockholders for
monetary damages except (i) for any breach of the director's duty of loyalty;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) pursuant to Section 174 of the
Delaware General Corporation Law providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions; or
(iv) for any transaction from which a director derived an improper personal
benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Amended and Restated 1991 Directors' Stock Option and Award Plan
(incorporated by reference to Exhibit A to Registrant's
definitive Proxy Statement dated May 22, 1995 with respect to
Registrant's 1995 Annual Meeting of Stockholders held on June 27,
1995) (the "1995 Proxy Statement").
4.2 Amended and Restated 1991 Stock Option and Incentive Plan
(incorporated by reference to Exhibit B to the 1995 Proxy
Statement).
5 Opinion of counsel as to the legality of the shares of Common
Stock being registered
23.1 Consent of Independent Accountants
24 Power of Attorney (included on the signature page of this
Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in this Registration Statement;
5<PAGE>
<PAGE>
NATIONAL EDUCATION CORPORATION AND SUBSIDIARIES
(iii) 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 this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the 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, each
filing of Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of Registrant pursuant to the foregoing
provisions or otherwise, 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 Registrant of expenses incurred or paid by
a director, officer or controlling person of 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, 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 of 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.
6<PAGE>
<PAGE>
NATIONAL EDUCATION CORPORATION AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Irvine, State of California, as of this 31st day of August, 1995.
NATIONAL EDUCATION CORPORATION
a Delaware corporation
By: /s/ Sam Yau
_______________________________________
Sam Yau
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Sam Yau and Philip C. Maynard, or either
of them, his true and lawful attorneys-in-fact and agents, each with full power
of substitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including without limitation
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 each of said attorneys-in-fact
and agents 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 any of said attorneys-in-fact and agents, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
7<PAGE>
<PAGE>
NATIONAL EDUCATION CORPORATION AND SUBSIDIARIES
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and as of
the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------ ----------------------------- ---------------
<C> <S> <S>
/s/ David C. Jones
________________________
David C. Jones Chairman of the Board August 31, 1995
/s/ Sam Yau
________________________ President, Chief Executive
Sam Yau Officer (principal executive August 31, 1995
officer) and Director
/s/ Keith K. Ogata
________________________ Vice President and Chief
Keith K. Ogata Financial Officer (principal August 31, 1995
financial officer and
principal accounting officer)
/s/ Richard C. Blum
________________________
Richard C. Blum Director August 31, 1995
/s/ David Bonderman
________________________
David Bonderman Director August 31, 1995
/s/ Leonard W. Jaffe
________________________
Leonard W. Jaffe Director August 31, 1995
/s/ Michael R. Klein
________________________
Michael R. Klein Director August 31, 1995
8<PAGE>
<PAGE>
NATIONAL EDUCATION CORPORATION AND SUBSIDIARIES
<CAPTION>
Signature Title Date
- ------------------------ ----------------------------- ---------------
<C> <S> <S>
/s/ Paul B. MacCready
________________________
Paul B. MacCready Director August 31, 1995
/s/ Frederic V. Malek
________________________
Frederic V. Malek Director August 31, 1995
/s/ John J. McNaughton
________________________
John J. McNaughton Director August 31, 1995
/s/ William D. Walsh
________________________
William D. Walsh Director August 31, 1995
</TABLE>
9<PAGE>
<PAGE>
NATIONAL EDUCATION CORPORATION AND SUBSIDIARIES
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
_______ ___________ ____________
<S> <C> <C>
4.1 Amended and Restated 1991 Directors' Stock
Option and Award Plan. . . . . . . . . . . . . . . . . <F1>
4.2 Amended and Restated 1991 Stock Option and
Incentive Plan . . . . . . . . . . . . . . . . . . . . <F2>
5 Opinion of counsel as to the legality of the
shares of Common Stock being registered. . . . . . . . 19
23.1 Consent of Independent Accountants . . . . . . . . . . 20
24 Power of Attorney. . . . . . . . . . . . . . . . . . . <F3>
________________________________
<FN>
<F1>
Incorporated by reference to Exhibit A to Registrant's definitive Proxy
Statement dated May 22, 1995 with respect to Registrant's 1995 Annual Meeting
of Stockholders held on June 27, 1995 (the "1995 Proxy Statement").
<F2>
Incorporated by reference to Exhibit B to the 1995 Proxy Statement.
<F3>
Included on the signature page of this Registration Statement.
</FN>
</TABLE>
10
<PAGE>
<PAGE>
EXHIBIT 5
OPINION OF COUNSEL AS TO THE LEGALITY OF THE
SHARES OF COMMON STOCK BEING REGISTERED
September 25, 1995
National Education Corporation
18400 Von Karman Avenue
Irvine, California 92715
Ladies and Gentlemen:
The undersigned is general counsel to National Education Corporation, a
Delaware corporation (the "Company") and as such has assisted the Company with
the preparation and filing of the Amended and Restated 1991 Directors' Stock
Option and Award Plan and the Amended and Restated 1990 Stock Option and
Incentive Plan to be filed by the Company with the Securities and Exchange
Commission in connection with the registration of an aggregate 1,660,000 shares
of the Common Stock, $.01 par value (the "Common Stock"), of the Company. As
such counsel, we have examined the proceedings proposed to be taken in
connection with the Plans and the sale and issuance of the Common Stock pursuant
thereto and such other matters and documents as we have deemed necessary or
relevant as a basis for this opinion.
Based on these examinations, it is our opinion that upon completion of the
proceedings being taken or which we, as your counsel, contemplate will be taken
prior to the sale and issuance of the Common Stock, such Common Stock, when sold
and issued in the manner referred to in the Registration Statement and the
Plans, will be legally and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Philip C. Maynard
<PAGE>
<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 February 6, 1995 appearing on page
F-1 of the National Education Corporation Annual Report on Form 10-K for the
year ended December 31, 1994.
Price Waterhouse LLP
Costa Mesa, California
September 5, 1995
