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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 5, 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
________________
ANALYTICAL SURVEYS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
COLORADO 84-0846389
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1935 JAMBOREE DRIVE
COLORADO SPRINGS, COLORADO 80920
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ANALYTICAL SURVEYS, INC.
1997 AMENDED AND RESTATED INCENTIVE STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
__________________
SCOTT C. BENGER, SENIOR VICE PRESIDENT-FINANCE
1935 JAMBOREE DRIVE
COLORADO SPRINGS, COLORADO 80920
(719) 593-0093
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
_____________
COPY TO:
LESLIE A. NICHOLS, ESQ.
SHERMAN & HOWARD L.L.C.
3000 FIRST INTERSTATE TOWER NORTH
633 SEVENTEENTH STREET
DENVER, COLORADO 80202
(303) 297-2900
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Maximum Offering Maximum Amount of
Title of Securities to be Amount to be Price Per Share (1) Aggregate Registration Fee
Registered Registered Offering Price (1)
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<S> <C> <C> <C> <C>
Common Stock, no par value 540,000 Shares $39.125 $21,127,500 $6,233
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</TABLE>
(1) Determined pursuant to Rule 457(h)(1) of the Securities Act of 1933, based
upon the average high and low prices of the Common Stock in the Nasdaq
National Market System on March 3, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of this Form is included in documents
sent or given to participants in the Analytical Surveys, Inc. 1997 Amended and
Restated Incentive Stock Option Plan, as amended and supplemented, pursuant to
Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities
Act"). In accordance with Rule 428(a) and the requirements of Part I of Form S-
8, such documents are not being filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement or
as a prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Analytical Surveys, Inc. (the "Company"
or the "Registrant") with the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated herein by reference:
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act; or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited
financial statements for the Registrant's latest fiscal year for which
such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual
report or prospectus referred to in (a) above.
(c) The description of the common stock, no par value, of the Registrant
contained in a registration statement filed under Section 12 of the
Exchange Act, including any amendments or reports filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, as amended, subsequent to the date of this
Registration Statement and 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
in this Registration Statement and to be a part thereof from the date of the
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
All of the securities being registered are registered under Section 12 of
the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 7-109-102 of the Colorado Business Corporation Act (the "Act")
provides, generally, that a corporation may indemnify a person made a party to
any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative and whether formal
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or informal (a "Proceeding"), because the person is or was a director of the
corporation or an individual who, while serving as a director of the
corporation, is or was serving at the corporation's request as a director,
officer, agent, associate, employee, fiduciary, manager, member, partner,
promoter or trustee of, or to hold any similar position with, another
corporation or other entity or of any employee benefit plan (a "Director"),
against any obligation incurred with respect to a Proceeding to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to an
employee benefit plan) or reasonable expenses if the person conducted himself or
herself in good faith and the person reasonably believed, in the case of conduct
in an official capacity with the corporation, that his or her conduct was in the
corporation's best interests and, in all other cases, his conduct was at least
not opposed to the corporation's best interest and, with respect to any criminal
proceeding, the person had no reasonable cause to believe that his or her
conduct was unlawful. However, a corporation may not indemnify a Director in
connection with any Proceeding by or in the right of the corporation in which
the Director was adjudged liable to the corporation or, in connection with any
other Proceeding charging the Director derived an improper personal benefit,
whether or not involving actions in an official capacity, in which Proceeding
the Director was judged liable on the basis that he or she derived an improper
personal benefit. Any indemnification permitted in connection with a Proceeding
by or in the right of the corporation is limited to reasonable expenses incurred
in connection with such Proceeding. Under Section 7-109-107 of the Act, unless
otherwise provided in the articles of incorporation, a corporation may indemnify
and advance expenses to an officer, employee, fiduciary, or agent of the
corporation to the same extent as to a Director and may indemnify and advance
expenses to an officer, employee, fiduciary, or agent who is not a Director to a
greater extent, if not inconsistent with public policy and if provided for by
its bylaws, general or specific action of its board of directors or
shareholders, or contract.
Section 7-108-402 of the Act provides, generally, that the articles of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director; except that any such
provision may not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its shareholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) acts specified in (S) 7-108-403 of the Act
(unlawful distributions), or (iv) any transaction from which a director directly
or indirectly derived an improper personal benefit. Such provision may not
eliminate or limit the liability of a director for any act or omission occurring
prior to the date on which such provision becomes effective.
Article IX of the Company's Articles of Incorporation, as amended (the
"Articles"), provides as follows:
ARTICLE IX: DIRECTORS LIABILITY
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1. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS: The personal liability
---------------------------------------------
of all directors of the corporation to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director shall be eliminated
or limited to the fullest extent permitted by
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the Colorado Corporation Code, an it now exists or may be hereafter amended. Any
repeal or modification of this article by the shareholders of the corporation
shall not adversely affect any right of protection of a director of the
corporation existing at the time of such repeal or modification.
2. INDEMNIFICATION AND INSURANCE.
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(A) Right to Indemnification. Each person who was or is made a party or is
------------------------
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a Director, officer or employee of
the corporation or is or was serving at the request of the corporation as a
Director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans hereinafter, an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, officer,
employee or agent in any other capacity while serving as a Director, officer,
employee or agent, shall be indemnified and held harmless by the corporation to
the fullest extent authorized by the Colorado Corporation Code, as the same
exists or may hereinafter be amended (but, in the case of such amendment, only
to the extent that such amendment permits the corporation to provide broader
indemnification rights than said Code permitted the corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorney's fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith. Such indemnification shall continue as to an
indemnitee who has ceased to be a Director, officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that, except as provided in Paragraph (B) hereof with respect
to proceedings to enforce rights to indemnification, the corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such Indemnities only if such proceeding (or part thereof) was
authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition.
(B) Non-exclusivity of Rights. The rights to indemnification and to the
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advancement of expenses conferred in this Section shall not be exclusive of any
other right which any person may have or hereinafter acquire under any statute,
provision of these Articles of Incorporation, By-law, agreement, vote of
stockholders or disinterested Directors or otherwise.
(C) Insurance. The corporation shall maintain insurance, at its expense to
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protect itself and any Director, officer, employee or agent of the corporation
or another corporation, partnership. joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Colorado Corporation Code.
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(D) Indemnification of Agents of the Corporation. The corporation may, to
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the extent authorized from time to time by the Board of Directors, grant rights
to indemnification and to the advancement of expenses to any agent of the
corporation to the fullest extent of the provisions of this Section with respect
to the indemnification and advancement of expenses of Directors, officers and
employees of the corporation.
Section 1 of Article XIII of the Articles provides as follows:
ARTICLE XIII
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The corporation shall indemnify any director or officer, or former director
or officer, of the corporation, or any person who may have served at its request
as a director or officer of another corporation in which it owns shares of
capital stock, or of which it is a creditor, and the personal representative of
all such persons, against expenses actually and necessarily incurred by him in
connection with the defense of any action, suit or proceeding in which he is
made a party by reason of being or having been such director or officer, except
in relation to matters as to which he shall be adjudged in such action, suit or
proceedings, to be liable for negligence or misconduct in the performance of
duty; but such indemnification shall not be deemed exclusive of any other rights
to which such director or officer may be entitled, under any by-law, agreement
vote of shareholders, or otherwise nor shall anything herein contained restrict
the right of the corporation to indemnify or reimburse such person in any proper
case, even though not specifically herein provided for. The corporation, its
directors, officers, employees and agents shall be fully protected in taking any
action or making any payment under this Article, or in refusing so to do, in
reliance upon the advice of counsel.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index and Exhibits at the end of this Registration
Statement.
ITEM 9. UNDERTAKINGS.
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;
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(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;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained 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
offering 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.
(4) 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) and each filing of the annual report of the Plan 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 Securities Act
of 1933 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Colorado Springs, State of Colorado, on March 4,
1998.
ANALYTICAL SURVEYS, INC.
By: /s/ Sidney V. Corder
--------------------
Sidney V. Corder
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Sidney V. Corder and Scott C. Benger, and each of
them, his true and lawful attorneys-in-fact and agents, each 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 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 either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Sidney V. Corder Chairman of the Board, March 4, 1998
--------------------- President and Chief
Sidney V. Corder Executive Officer
(Principal Executive
Officer)
/s/ Scott C. Benger Senior Vice President, March 4, 1998
---------------------- Finance (Principal
Scott C. Benger Financial and
Accounting Officer)
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/s/ John A. Thorpe Director March 4, 1998
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John A. Thorpe
/s/ Richard P. MacLeod Director March 4, 1998
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Richard P. MacLeod
/s/ James T. Rothe Director March 4, 1998
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James T. Rothe
/s/ Robert H. Keeley Director March 4, 1998
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Robert H. Keeley
/s/ Willem H. J. Andersen Director March 4, 1998
-------------------------
Willem H. J. Andersen
/s/ Sol C. Miller Director March 4, 1998
-------------------------
Sol C. Miller
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INDEX TO EXHIBITS
Exhibit No.
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5.1 Opinion of Sherman & Howard L.L.C.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Sherman & Howard L.L.C. (included in Exhibit 5).
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Exhibit 5.1
March 4, 1998
Analytical Surveys, Inc.
1935 Jamboree Drive
Colorado Springs, Colorado 80920
Attn: Sidney V. Corder, Chairman of the Board
Dear Mr. Corder:
We have acted as special counsel for Analytical Surveys, Inc. (the "Company") in
connection with the preparation, execution and filing of a Registration
Statement under the Securities Act of 1933 on Form S-8 relating to the
registration of 540,000 shares of Analytical Surveys, Inc. Common Stock, no par
value ("Common Stock"), which may be purchased by participants in the Analytical
Surveys, Inc. 1997 Amended and Restated Incentive Stock Option Plan, as amended
and supplemented (the "Plan").
In connection with the opinion expressed below, we have made such factual
inquiries and have examined or caused to be examined such questions of law as we
have considered necessary or appropriate for the purpose of such opinion. On
the basis of such inquiries or examinations, it is our opinion that any newly
issued shares of Common Stock purchased from the Company pursuant to the Plan,
when paid for as contemplated by the Plan, will be duly authorized, validly
issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above.
Very truly yours,
Sherman & Howard L.L.C.
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Exhibit 23.1
The Board of Directors
Analytical Surveys, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Analytical Surveys, Inc. of our report dated October 31, 1997, relating
to the consolidated balance sheets of Analytical Surveys, Inc. and subsidiaries
as of September 30, 1997 and 1996, and the related consolidated statements of
operations, stockholders' equity, and cash flows for each of the years in the
three-year period ended September 30, 1997 which report appears in the September
30, 1997 annual report on Form 10-K of Analytical Surveys, Inc.
KPMG Peat Marwick LLP
Denver, Colorado
March 3, 1998
