As filed with the Securities and Exchange Commission on April 24, 1998
Registration No. 333-_____
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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.
OSWALD 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 LLP
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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Title of
Securities Proposed maximum Proposed maximum Amount of
to be Amount to be offering price per aggregate offering registration
registered registered share (1) price (1) fee
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Common Stock,
$.03 par value 178,000 $ 24.3125 $ 4,327,625 $ 1,311.27
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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 System on April 20, 1998.
<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, 1998.
(b) The description of the Company's Common Stock and
Common Stock Purchase Rights contained in any
Registration Statement filed by the Company for the
purpose of updating any such description.
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.
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.
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.
Item 8. Exhibits
Exhibit
Number Description
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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.
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.
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: April 22, 1998 By: /s/ J. W. Fenton, Jr.
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J. W. Fenton, Jr.
Secretary/Treasurer
<PAGE>
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 Chief Executive Officer
Russell A. Gullotti (principal executive officer)
By: David C. Cox* Director
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David C. Cox
By: Moses S. Joseph* Director
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Moses S. Joseph
By: Jean B. Keffeler* Director
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Jean B. Keffeler
By: Charles W. Oswald* Director
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Charles W. Oswald
By: Stephen G. Shank* Director
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Stephen G. Shank
By: John E. Steuri* Director
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John E. Steuri
By: John W. Vessey* Director
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John W. Vessey
By: Jeffrey W. Taylor* Vice President and Chief Financial Officer
- -------------------------- (principal financial and accounting officer)
Jeffrey W. Taylor
* 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: April 22, 1998
<PAGE>
EXHIBIT INDEX TO
FORM S-8
NATIONAL COMPUTER SYSTEMS, INC.
Exhibit
Number Description
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)
23 - 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 178,000 shares of Common Stock, $.03 par value, of the Company (the
"Shares"), issuable upon the exercise of stock options granted pursuant to the
Company's Oswald 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: April 22, 1998 Very truly yours,
/s/ Dorsey & Whitney LLP
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 Oswald Stock Option Plan of National
Computer Systems, Inc. and subsidiaries, of our report dated March 2, 1998 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, 1998 filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Minneapolis, Minnesota
April 22, 1998
EXHIBIT 24
POWER OF ATTORNEY
OSWALD STOCK OPTION PLAN
The undersigned directors and officers of NATIONAL COMPUTER
SYSTEMS, INC. hereby constitute and appoint J. W. Fenton, Jr. their true and
lawful attorney-in-fact and agent, for each of them and in their name, place and
stead, in any and all capacities (including without limitation, as Director
and/or principal Executive Officer, principal Financial Officer, principal
Accounting Officer or any other officer of the Company), to sign a registration
statement, and any and all amendments thereto, including post-effective
amendments, on Form S-8 relating to the issuance of Common Stock of National
Computer Systems, Inc. pursuant to Oswald Stock Option Plan, which is to be
filed with the Securities and Exchange Commission, with all exhibits thereto,
and any and all documents in connection therewith, hereby granting unto said
attorney-in-fact and agent full power and authority to do and perform any and
all acts and things requisite and necessary to be done, and hereby ratifying and
confirming all that said attorney-in-fact and agent may do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands this 3rd day of March, 1998.
/s/ Russell A. Gullotti /s/ Stephen G. Shank
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Russell A. Gullotti Stephen G. Shank
/s/ David C. Cox /s/ John E. Steuri
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David C. Cox John E. Steuri
/s/ Jean B. Keffeler /s/ John W. Vessey
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Jean B. Keffeler John W. Vessey
/s/ Moses S. Joseph /s/ Jeffrey W. Taylor
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Moses S. Joseph Jeffrey W. Taylor
/s/ Charles W. Oswald
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Charles W. Oswald
