As filed with the Securities and Exchange Commission on April 27, 2000
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, Minnesota 55344
(Address of principal executive offices) (Zip Code)
NATIONAL COMPUTER SYSTEMS, INC.
1999 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 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
(952) 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 Amount Proposed maximum Proposed maximum Amount of
to be to be offering price aggregate offering registration
registered registered per share (1) price fee
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Common Stock, 100,000 $47.00 $4,700,000 $1,240.80
$.03 par value
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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 April 20, 2000.
<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
29, 2000.
(b) The descriptions of the Company's Common Stock contained in the Company's
registra-tion statements on Form 8-A and amendments thereto dated June 2,
1969, June 24, 1987, March 13, 1996 and December 15, 1998.
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.
Item 8. Exhibits
Exhibit
Number Description
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4 Amended and Restated Rights Agreement dated as of December 8, 1998
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. 3 to
Form 8-A/A dated December 15, 1998.
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
<PAGE>
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 25, 2000 By: /s/ J.W. Fenton, Jr.
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J.W. Fenton, Jr.
Secretary/Treasurer
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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 Position
By: Russell A. Gullotti* Chairman of the Board of Directors, President and
- --------------------------- Chief Executive Officer
Russell A. Gullotti (principal executive officer)
By: William J. Cadogan* Director
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William J. Cadogan
By: David C. Cox* Director
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David C. Cox
By: Delores M. Etter* Director
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Delores M. Etter
By: Jean B. Keffeler* Director
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Jean B. Keffeler
By: John J. Rando* Director
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John J. Rando
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: 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.
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(Attorney-in-fact) Dated: April 25, 2000
<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"), pursuant to the Company's 1999 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: April 25, 2000 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 1999
Non-Employee Director Stock Option Plan of National Computer Systems, Inc. and
subsidiaries, of our report dated March 6, 2000, 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 29, 2000, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Minneapolis, Minnesota
April 25, 2000
EXHIBIT 24
POWER OF ATTORNEY
1999 NON-EMPLOYEE DIRECTOR 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 National Computer Systems, Inc. 1999
Non-Employee Director 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 2nd day of March, 1999.
/s/ Russell A. Gullotti /s/ Stephen G. Shank
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Russell A. Gullotti Stephen G. Shank
/s/ William J. Cadogan /s/ John E Steuri
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William J. Cadogan John E. Steuri
/s/ David C. Cox /s/ Jeffrey W. Taylor
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David C. Cox Jeffrey W. Taylor
/s/ Delores M. Etter
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Delores M. Etter Signed on this 7th day of March, 2000
/s/ Jean B. Keffeler /s/ John J. Rando
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Jean B. Keffeler John J. Rando
