As filed with the Securities and Exchange Commission on July 13, 1998
Registration No. 333-_________
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------
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.
1997 LONG-TERM INCENTIVE 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)
----------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to to be price per offering registration
be registered registered share (1) price (1) fee
- -------------------------------------------------------------------------------
Common Stock, 600,000 $23.844 $14,306,400 $4,220.39
$.03 par value
- -------------------------------------------------------------------------------
(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 July 7, 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 Company's quarterly report on Form 10-Q for the quarter
ended April 30, 1998.
(c) The descriptions of the Company's Common Stock contained in the
Company's registration statements on Form 8-A and amendments
thereto dated June 2, 1969, June 24, 1987 and March 13, 1996.
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.
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.
<PAGE>
Item 8. Exhibits
Exhibit
Number Description
- ------- -----------
4 Amended and Restated Rights Agreement dated as of March 4, 1996
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 1 to Amendment No. 2 to
Form 8-A/A dated March 13, 1996.
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: July 10, 1998 By: /s/ J.W. Fenton, Jr.
-----------------------
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 & CEO
Russell A. Gullotti (principal executive officer)
By: Director
-------------------
David C. Cox
By: Director
-------------------
Delores M. Etter
By: Moses S. Joseph* Director
-------------------
Moses S. Joseph
By: Jean B. Keffeler* Director
-------------------
Jean B. Keffeler
By: Stephen G. Shank* Director
-------------------
Stephen G. Shank
By: John E. Steuri* Director
-------------------
John E. Steuri
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: July 10, 1998
<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 issuance by the Company from time to time
of up to 600,000 shares of Common Stock, $ .03 par value, of the Company (the
"Shares") pursuant to the Company's 1997 Long-Term Incentive 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: July 10, 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 National Computer Systems, Inc. 1997
Long-Term Incentive 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
July 10, 1998
EXHIBIT 24
POWER OF ATTORNEY
1997 LONG-TERM INCENTIVE 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 its National Computer Systems, Inc. 1997 LONG-TERM INCENTIVE 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, 1997.
/s/ Russell A. Gullotti /s/ Stephen G. Shank
- -------------------------- -------------------------
Russell A. Gullotti Stephen G. Shank
/s/ /s/ John E. Steuri
- -------------------------- -------------------------
David C. Cox John E. Steuri
/s/ Moses S. Joseph /s/ Jeffrey E. Stiefler
- -------------------------- -------------------------
Moses S. Joseph Jeffrey E. Stiefler
/s/ Jean B. Keffeler /s/ John W. Vessey
- -------------------------- -------------------------
Jean B. Keffeler John W. Vessey
/s/ Charles W. Oswald /s/ Jeffrey W. Taylor
- -------------------------- -------------------------
Charles W. Oswald Jeffrey W. Taylor
