PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by National Data Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Company's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, (with respect
thereto, refer to Note 3 to the unaudited financial statements contained in the
Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 1993
for disclosure regarding the settlement of certain stockholder litigation) or
either: (1) the latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933 that contains audited financial statements for the
Company's latest fiscal year for which such statements have been filed, or (2)
the Company's effective registration statement on Form 10 or 20-F filed under
the Securities Exchange Act of 1934 containing audited financial statements for
the Company's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the document incorporated pursuant to (b) above.
(c) The description of any class of securities to be offered
which is contained in a registration statement filed under Section 12 of the
Securities Exchange Act of 1934, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934 prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
Item 4. Description of Securities. Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the issuance of the securities being registered has been
passed upon for the Company by the law firm of Alston & Bird, counsel for the
Company. L. Neil Williams, Jr., a partner of Alston & Bird, is a director of
the Company.
Item 6. Indemnification of Directors and Officers.
The bylaws of the Company provide for the indemnification of directors,
officers, employees, and agents of the Company, as well as others serving at
their request, in certain specific instances in accordance with the Delaware
General Corporation Law. In an action brought by or in the right of the
Company, the individual is entitled to indemnification of expenses of defense or
settlement if he acted in good faith, and in a manner reasonably believed to be
in or not opposed to the best interests of the Company, except that no
indemnification may be afforded in instances where the individual has been
adjudged liable for negligence or misconduct in the performance of the
individual's duties to the Company, unless the court hearing such action
determines that the individual is entitled to indemnity. In all other actions,
the individual is entitled to indemnification of expenses, judgments, fines, and
amounts paid in settlement if the individual acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company and, in criminal proceedings, if he had no reasonable cause to believe
his conduct was unlawful. The indemnification for any such action (other than
as ordered by a court) may be made by the Company only upon a determination that
indemnification is proper in the circumstances because the individual met the
applicable standard of conduct. Such determination must be made by a majority
vote of disinterested directors or, in certain specific instances, by
independent legal counsel or by the stockholders.
The bylaws of the Company provide that the Company may purchase and
maintain insurance on behalf of directors, officers, employees, and agents, as
well as others serving at their request, against any liabilities asserted
against such persons whether or not the Company would have the power to
indemnify such directors, officers, employees, or agents against such liability
under the Delaware General Corporation Law. The Company has purchased and
maintains such insurance pursuant to such authorization.
The Company's Certificate of Incorporation, as amended, also provides
that a director of the Company will not be liable for monetary damages to the
Company or its stockholders for breach of fiduciary duty as a director except in
specified instances.
Item 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits.*
4(a). Certificate of Incorporation and Bylaws of the Company, as
amended (incorporated by reference to Exhibits 3(i) and 3(ii) to the Company's
Annual Report on Form 10-K for the year ended May 31, 1991, File No. 03966).
4(b). Shareholder Rights Agreement, dated as of January 18, 1991,
between the Company and Trust Company Bank, as Rights Agent (incorporated by
reference to Exhibit 4(1) to the Company's Current Report on Form 8-K dated
January 18, 1991, File No. 03966).
5. Opinion of Alston & Bird regarding the legality of the
securities being registered.
23(a). Consent of Alston & Bird (included in Exhibit 5).
23(b). Consent of Arthur Andersen & Co.
24. Power of Attorney.
* Exhibits are numbered in accordance with Item 601 of Regulation S-K.
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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the
registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change in such information in the registration
statement;
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) above do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is containe d in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offeri ng 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 issuer 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 Exch ange Act of l934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities and 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.
(h) 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 provisions described in Item 6 of this
Part II, 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 indemnific ation 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 di rector, 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 t he 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, National Data Corporation, 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 r egistration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on the 12th day of August, 1994.
NATIONAL DATA CORPORATION
Registrant
By: Robert A. Yellowlees
----------------------------------
Robert A. Yellowlees, President and
Chief Executive Officer
(Principal Executive Officer)
By: Jerry W. Braxton
-------------------------------------
Jerry W. Braxton, Executive Vice
President, Chief Financial Officer and
Treasurer
(Principal Financial Officer)
By: M.P. Stevenson
----------------------------------
M.P. Stevenson, Vice President and
Controller
(Principal Accounting Officer)
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints ROBERT A. YELLOWLEES and E. MICHAEL INGRAM, or
either of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution, and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
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 said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or 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 said attorneys-in-fact and agents or any of
them or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
Robert A. Yellowlees Chairman of the Board August 12, 1994
- -------------------------- of Directors, President
Robert A. Yellowlees and Chief Executive Officer
Edward L. Barlow Director August 12, 1994
- --------------------------
Edward L. Barlow
L. Neil Williams, Jr. Director August 12, 1994
- -------------------------
L. Neil Williams, Jr.
James B. Edwards Director August 12, 1994
- --------------------------
James B. Edwards
Don W. Sands Director August 12, 1994
- --------------------------
Don W. Sands
Ira C. Herbert Director August 12, 1994
- --------------------------
Ira C. Herbert
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS FILED WITH
REGISTRATION STATEMENT
ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
NATIONAL DATA CORPORATION
National Data Plaza
Atlanta, Georgia 30329-2010
EXHIBIT INDEX
Exhibit Number* Description
- ---------------- -------------------
5 Opinion of Alston & Bird regarding the legality
of the securities being registered.
23(a) Consent of Alston & Bird (included in Exhibit 5).
23(b) Consent of Arthur Andersen & Co.
24 Power of Attorney.
*Exhibits are numbered in accordance with Item 601 of Regulation S-K.
Exhibit 5
Opinion of Alston & Bird regarding the legality of
the securities being registered.
August 12, 1994
National Data Corporation
National Data Plaza
Atlanta, Georgia 30329-2010
Gentlemen:
This opinion is given in connection with the filing by National Data
Corporation ("NDC") with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of a Registration Statement on Form S-8 (the
"Registration Statement") with respect to up to 230,000 shares (the "Shares") of
the $.125 par value Common Stock of NDC (the "Common Stock") to be issued to
directors of NDC pursuant to the National Data Corporation 1984 Non-Employee
Directors Stock Option Plan (the "Plan").
We have examined such corporate records and documents as we deemed
relevant and necessary to enable us to give the opinion set forth herein,
including the Certificate of Incorporation and Bylaws of NDC, as amended,
resolutions of the Board of Directors of NDC authorizing the Plan and
authorizing amendments to the Plan, and minutes of the annual meetings of
stockholders of NDC at which the Plan was approved and at which amendments to
the Plan were approved.
Based upon the foregoing, we are of the opinion that the Shares to be
issued under the Plan, upon issuance in accordance with the terms and conditions
of the Plan, will be duly authorized, legally issued, and fully paid and non-
assessable under the Delaware General Corporation Law as in effect on this date.
L. Neil Williams, Jr., a partner of Alston & Bird, is a director of NDC.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement.
Sincerely yours,
ALSTON & BIRD
By: Jeffrey P. Adams
Exhibit 23(a)
Consent of Alston & Bird.
(Included in Exhibit 5)
Exhibit 23(b)
Consent of Arthur Andersen & Co.
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 and in the
prospectus pertaining to the National Data Corporation 1984 Non-Employee
Directors Stock Option Plan of our report dated July 14, 1993 in National Data
Corporation's Form 10-K for the year ended May 31, 1993 and to all references to
our firm in this registration statement.
Arthur Andersen & Co.
Atlanta, Georgia
August 12, 1994
