As filed with the Securities and Exchange Commission on January 23, 1996
Registration No. 33-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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NATIONAL COMPUTER SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-0850527
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
11000 Prairie Lakes Drive
Eden Prairie, MN 55344
(Address of principal executive offices) (Zip Code)
NATIONAL COMPUTER SYSTEMS, INC.
1989 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
J.W. Fenton, Jr. Copy to:
Secretary/Treasurer Jay L. Swanson
National Computer Systems, Inc. Dorsey & Whitney P.L.L.P.
11000 Prairie Lakes Drive Pillsbury Center South
Eden Prairie, Minnesota 55344 220 South Sixth Street
(Name and address of agent for service) Minneapolis, Minnesota 55402
(612) 829-3040
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum Amount of
Title of securities Amount to be offering aggregate registration
to be registered registered price per sh. offering price(1) fee
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Common Stock,
$.03 par value 100,000 $18.25 $1,825,000 $629.31
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(1) Estimated solely for the purpose of calculating the registration fee, based
upon the average of the high and low prices of the Common Stock as reported on
the Nasdaq National Market on January 19, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents which have been filed by National
Computer Systems, Inc. (the "Company") with the Securities and Exchange
Commission are incorporated by reference in this Registration Statement, as of
their respective dates:
(a) The Company's annual report on Form 10-K for the fiscal
year ended January 31, 1995.
(b) The Company's quarterly reports on Form 10-Q for the
quarters ended April 30, July 31, and October 31, 1995.
(c) The descriptions of the Company's Common Stock contained
in the Company's registration statements on Form 8-A dated June 2, 1969
and June 24, 1987.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the respective
dates of filing of such documents.
Item 6. Indemnification of Directors and Officers
Section 302A.521 of the Minnesota Statutes requires, among
other things, the indemnification of persons made or threatened to be made a
party to a proceeding by reason of acts or omissions performed in their official
capacity as an officer, director, employee or agent of the corporation against
judgments, penalties and fines (including attorneys' fees) if such person is not
otherwise indemnified, acted in good faith, received no improper benefit,
believed that such conduct was in the best interests of the corporation, and, in
the case of criminal proceedings, had no reason to believe the conduct was
unlawful. In addition, Section 302A.521, subd. 3, requires payment by the
corporation, upon written request, of reasonable expenses in advance of final
disposition in certain instances. A decision as to required indemnification is
made by a disinterested majority of the Board of Directors present at a meeting
at which a disinterested quorum is present or by a designated committee of the
Board, by special legal counsel, by the shareholders or by a court.
Article IX of the Company's Restated Articles of
Incorporation, as amended, provides that a director of the Company shall not be
personally liable to the Company or its shareholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Company or its shareholders; (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) for authorizing a dividend, stock repurchase or
redemption or other distribution in violation of Minnesota law or for violation
of certain provisions of Minnesota securities laws; (iv) for any transaction
from which the director derived an improper personal benefit; or (v) for any act
or omission occurring prior to the date when Article IX became effective.
<PAGE>
The Bylaws of the Company provide that the Company shall
indemnify such persons, for such liabilities, in such manner, under such
circumstances and to such extent as permitted by Section 302A.521, as now
enacted or hereafter amended.
Item 8. Exhibits
Exhibit
Number Description
4 - Rights Agreement dated as of June 23, 1987 between the Company
and Norwest Bank Minnesota, N.A. (including the form of Right
Certificate attached as Exhibit B thereto) is incorporated
herein by reference to Exhibit 4.1 to the Company's report on
Form 8-K dated June 23, 1987.
5 - Opinion of Counsel for the Company
23.1 - Consent of Independent Auditors
23.2 - Consent of Counsel for the Company (included in Exhibit 5)
24 - Power of Attorney
Item 9. Undertakings
The undersigned registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment to 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.
The undersigned registrant hereby undertakes 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.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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.
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the 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
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 Act and will
be governed by the final adjudication of such issue.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Eden Prairie, State of Minnesota.
NATIONAL COMPUTER SYSTEMS, INC.
Dated: January 22, 1996 By: /s/ J.W. Fenton, Jr.
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J.W. Fenton, Jr.
Secretary/Treasurer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name
By: Russell A. Gullotti* Chairman of the Board of Directors, President and
Russell A. Gullotti Chief Executive Officer
(principal executive officer)
By: David P. Campbell* Director
David P. Campbell
By: David C. Cox* Director
David C. Cox
By: Director
Jean B. Keffeler
By: Charles W. Oswald* Director
Charles W. Oswald
By: Stephen G. Shank* Director
Stephen G. Shank
By: Director
John E. Steuri
By: Director
Jeffrey E. Stiefler
By: John W. Vessey* Director
John W. Vessey
By: Jeffrey W. Taylor* Vice President and Chief Financial Officer
Jeffrey W. Taylor (principal financial and accounting officer)
* Executed on behalf of the indicated officers and directors of the
registrant by J.W. Fenton, Jr., Secretary/Treasurer, duly appointed
attorney-in-fact.
/s/ J.W. Fenton, Jr.
(Attorney-in-fact) Dated: January 22, 1996
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page
5 - Opinion of Counsel for the Company ......................
23.1 - Consent of Independent Auditors .........................
23.2 - Consent of Counsel for the Company (included in Exhibit 5)
24 - Power of Attorney .......................................
EXHIBIT 5
National Computer Systems, Inc.
11000 Prairie Lakes Drive
Eden Prairie, Minnesota 55344
Re: Registration Statement on form S-8
Ladies and Gentlemen:
We have acted as counsel to National Computer Systems, Inc., a
Minnesota corporation (the "Company"), in connection with a Registration
Statement on Form S-8 relating to the sale by the Company from time to time of
up to 100,000 shares of Common Stock, $ .03 par value, of the Company (the
"Shares"), initially issuable upon the exercise of stock options granted
pursuant to the Company's Non-Employee Director Stock Option Plan (the "Plan").
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Dated: January 22, 1996 Very truly yours,
/s/ Dorsey & Whitney P.L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the National Computer Systems 1989
Non-Employee Director Stock Option Plan of National Computer Systems, Inc. and
subsidiaries, of our report dated March 15, 1995 with respect to the
consolidated financial statements of National Computer Systems, Inc. and
subsidiaries incorporated by reference in its Annual Report on Form 10-K for the
year ended January 31, 1995 filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Minneapolis, Minnesota
January 22, 1996
EXHIBIT 24
POWER OF ATTORNEY
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
The undersigned directors and officers of National Computer Systems,
Inc. hereby constitute and appoint J.W. Fenton, Jr. his true and lawful
attorney-in-fact to sign and execute, on behalf of the undersigned, a
registration statement and any amendment or amendments, including post-effective
amendments thereto, for the registration, under the Securities Act of 1933, as
amended, of up to 100,000 Common Shares of National Computer Systems, Inc. to be
issued in connection with the Company's Non-Employee Director Stock Option Plan
and the undersigned does hereby ratify and confirm all that said attorney shall
do or cause to be done by virtue thereof.
The undersigned have hereunto set their hands this 25th day of May,
1989.
/s/ Charles W. Oswald /s/ John W. Vessey
Charles W. Oswald, Chairman of the John W. Vessey, Director
Board and Director
(principal executive officer)
/s/ David C. Malmberg /s/ Arthur E. Weisberg
David C. Malmberg, President Arthur E. Weisberg, Director
/s/ David P. Campbell /s/ Robert F. Zicarelli
David P. Campbell, Director Robert F. Zicarelli, Director
/s/ David C. Cox /s/ Jeffrey W. Taylor
David C. Cox, Director Jeffrey W. Taylor, Vice
President and Corporate
Controller
Harvey Golub, Director
/s/ Stephen G. Shank
Stephen G. Shank, Director
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
The undersigned director and officers of National Computer Systems,
Inc. hereby constitute and appoint J.W. Fenton, Jr. his true and lawful
attorney-in-fact to sign and execute, on behalf of the undersigned, a
registration statement and any amendment or amendments, including post-effective
amendments thereto, for the registration, under the Securities Act of 1933, as
amended, of up to 100,000 Common Shares of National Computer Systems, Inc. to be
issued in connection with the Company's Non-Employee Director Stock Option Plan
and the undersigned does hereby ratify and confirm all that said attorney shall
do or cause to be done by virtue thereof.
The undersigned have hereunto set their hands this 18th day of January,
1996.
/s/ Russell A. Gullotti
Russell A. Gullotti
Chairman of the Board of
Directors, President and Chief
Executive Officer (principal
executive officer)
/s/ Jeffrey A. Taylor
Jeffrey W. Taylor
Vice President and Chief
Financial Officer (principal
financial and accounting officer)
