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As filed with the Securities and Exchange Commission on October 10, 1995
Registration No. 33-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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SUNRISE PRESCHOOLS, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 86-0532619
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9128 East San Salvador Drive, Suite 200, Scottsdale, Arizona 85258
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(Address of Principal Executive Offices) (Zip Code)
Stock Option Plan
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(Full title of the plan)
James R. Evans
President
Sunrise Preschools, Inc.
9128 East San Salvador Drive, Suite 200
Scottsdale, Arizona 85258
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(Name and address of agent for service)
(602) 860-1611
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(Telephone number, including area code, of agent for service)
With copy to:
Christopher D. Johnson, Esq.
Squire, Sanders & Dempsey
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
(602) 528-4000
Approximate Date of Commencement of Proposed Sale: As soon as practicable after
the Registration Statement becomes effective.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE * PRICE * FEE
---------- ---------- ----------- ------- ------------
<S> <C> <C> <C> <C>
Common Stock, 240,000 $3.00 $720,000 $248
$.01 par value
- -------------------------
* Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act
of 1933, on the basis of the average of the bid and asked prices for shares
of Common Stock on October 5, 1995.
==========================================================================================================
</TABLE>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to employees in accordance with Form S-8 and Securities
Act Rule 428.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference into
this Registration Statement: (a) the Registrant's Annual Report on Form 10-KSB
for the fiscal year ended July 30, 1994; (b) all reports filed with the
Securities and Exchange Commission pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 subsequent to July 30, 1994; and (c) the
description of the Registrant's capital stock contained in the Registrant's
Registration Statement on Form 8-A filed with the Securities and Exchange
Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior
to the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 9.1 of the Company's Certificate of Incorporation limits,
to the fullest extent permitted by the Delaware General Corporation Law
("DGCL"), as amended, directors' or officers' personal liability to the Company
or its stockholders for monetary damages or breach of fiduciary duty. Section
145 of the DGCL, enables a corporation to eliminate or limit personal liability
of members of its board of directors for violations of their fiduciary duty of
care. However, Delaware law does not permit the elimination of a director's or
officer's liability for engaging in intentional misconduct or fraud, knowingly
violating a law or unlawfully paying a distribution. The statute has no effect
on the availability of equitable remedies, such as an injunction or rescission,
for breach of fiduciary duty.
Section 9 of the Company's Certificate of Incorporation and Article
V of the Company's Bylaws require indemnification of directors and officers of
the Company to the full extent permitted by the DGCL for claims against them in
their official capacities, including stockholders' derivative actions. Section 9
of the Company's Certificate of Incorporation requires that the Company advance
expenses incurred in the defense of such claims and continue the right of
indemnification for persons who have ceased to be directors or officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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Item 8. EXHIBITS.
Exhibit Index located at Page 8.
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;
(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 (i) and (ii) 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 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.
(b) 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.
(c) 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
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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 of 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.
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SIGNATURES
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 Phoenix, and the State of Arizona, on October 6,
1995.
SUNRISE PRESCHOOLS, INC.
a Delaware corporation
By /s/ James R. Evans
-----------------------------------
James R. Evans, President
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints JAMES R. EVANS and BARBARA L. OWENS, and each of them, his true and
lawful attorney-in-fact and agent 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 Form S-8 Registration Statement, and to file the same with all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents, or each of them, may
lawfully do or cause to be done by virtue hereof.
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ James R. Evans Chairman of the Board, and President October 6, 1995
- --------------------------------- (Principal Executive Officer)
James R. Evans
/s/ Ronald J. O'Connor Controller( Principal Financial October 6, 1995
- --------------------------------- Officer; Principal Accounting Officer)
Ronald J. O'Connor
/s/ Robert Rice Director October 6, 1995
- ---------------------------------
Robert Rice
/s/ Richard D. Hinze Director October 6, 1995
- ---------------------------------
Richard D. Hinze
/s/ Barbara L. Owens Director October 6, 1995
- ---------------------------------
Barbara L. Owens
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page or
Number Description Method of Filing
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<S> <C> <C>
4 Stock Option Plan *
5 Opinion rendered by Squire, Sanders & Dempsey, counsel *
for the Registrant (including consent)
23.1 Consent of Arthur Andersen LLP *
23.2 Consent of Counsel Included in Exhibit 5
24 Powers of Attorney See Signature Page
</TABLE>
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* Filed herewith.
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EXHIBIT 4
SUNRISE PRESCHOOLS, INC.
STOCK OPTION PLAN
1. Purpose
The purpose of the Stock Option Plan (the "Plan") is to attract and
retain the best available directors and employees for positions of substantial
responsibility, to provide additional incentive to such directors and employees
of Sunrise Preschools, Inc. (the "Company") or any successor or any parent or
subsidiary of the Company which now exists or hereafter is organized or acquired
by or acquires the Company, and to promote the success of the business of the
Company.
2. Incentive and Nonqualified Stock Options
Two types of options (referred to herein as "options", without
distinction between such two types) may be granted under the Plan: options
intended to qualify as incentive stock options ("incentive stock options") under
Section 422A of the Internal Revenue Code of 1986 ("Code"); and other options
not specifically authorized or qualified for favorable income tax) treatment by
the Code, ("nonqualified stock options").
3. Eligibility and Administration
(a) Any employee including officers and directors who are employees of
the Company or any of its subsidiaries shall be eligible to receive incentive
stock options or nonqualified stock options under the Plan under the terms and
condition set forth in Paragraph 5. An employee may receive more than one option
under the Plan. Any director or officer of the Company who is not an employee of
the Company or any of its subsidiaries shall be eligible to receive nonqualified
stock options under the Plan under the terms and conditions set forth in
Paragraph 5.
(b) The Plan shall be administered by the Board of Directors or a
committee of directors or others appointed by the Board of Directors.
4. Shares Subject to Options
The stock available for grant of options under the Plan shall be shares
of the Company's authorized but unissued, or reacquired Common Stock. The
aggregate number of shares which may be issued pursuant to exercise of incentive
stock options and nonqualified stock options granted under the Plan shall be
240,000 shares. If any outstanding option under the Plan for any reason expires
or is terminated, the shares of Common Stock allocable to the unexercised
portion of the option shall again be
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available for options under the Plan as if no options had been granted with
respect to such shares.
5. Terms and Conditions of Options
Options granted under the Plan shall be evidenced by agreements in such
form and containing such provisions which are consistent with the Plan as the
Board or Committee shall from time to time approve. Each agreement shall specify
whether the option granted thereby is an incentive stock option or a
nonqualified stock option. Such agreements may incorporate all or any of the
terms hereof by reference and shall comply with and be subject to the following
terms and conditions:
(a) Each option agreement shall specify the number of incentive stock
options and/or nonqualified stock options granted.
(b) The purchase price for the shares subject to any option shall not
be less than 100% of the fair market value of the stock on the date the option
is granted; provided, however, that the option price for an incentive stock
option shall not be less than 110% of this fair market value of such stock on
the date the option is granted to an individual then owning (after the
application of the family and other attribution rules of Section 425(a) of the
Code), more than 10% of the total combined voting power of all classes of stock
of the Company or any subsidiary or parent corporation. For purposes of the
Plan, the "fair market value" of any shares subject to the Plan at any date
shall be (i) the reported closing price of such stock on the New York Stock
Exchange or other established stock exchange on such date, or if no sale of such
stock shall have been made on such exchange on that date, on the preceding date
on which there was such a sale (ii) if such stock is not then listed on an
exchange, the average of the closing bid and asked prices per share for such
stock in the over-the-counter market as quoted on NASDAQ on such date, or (iii)
if such stock is not then listed on an exchange or quoted on NASDAQ, an amount
determined in good faith by the Board.
(c) Tho purchase price for any shares purchased pursuant to exercise of
an option on granted under the Plan shall be paid in full upon exercise of the
option in cash, by check or by transferring to the Company shares of such stock
at their fair market value as determined by paragraph 5(b). Notwithstanding the
foregoing, the Company may extend and maintain, or arrange for the extension and
maintenance of, credit to an optionee to finance the optionee's purchase of
shares pursuant to exercise of an option, on such terms as may be approved by
the Board, subject to applicable regulations of the Federal Reserve Board and
any
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other laws or regulations in effect at the time such credit is extended.
(d) No option shall be exercisable after the expiration of the earliest
of (i) in the case of an incentive stock option, ten years from the date the
option is granted or, five years from the date the option is granted to an
individual owning (after the application of the family and other attribution
rules of Section 425(d) of the Code) at the time such option was granted, more
than 10% of the total combined voting power of all classes of stock of the
Company or any subsidiary or parent corporation, (ii) in the case of a
nonqualified option, eleven years from the date the option is granted, (iii) in
the case of an incentive stock option, three months after the date the
optionee's employment with the Company and its subsidiaries terminates, if such
termination is for any reason other than permanent disability, death or cause,
(iv) the date the optionee's employment (or resignation or removal from the
Board of Directors) with the Company and its subsidiaries terminates, if such
termination is for cause, as determined by the Board or Committee in its solo
discretion, or (v) one year after the date the optionee's employment (or
resignation or removal from the Board of Directors) with the Company and its
subsidiaries terminates if such termination is the result of death or permanent
disability; provided, however, that the option agreement for any option may
provide for shorter periods of exerciseability in each of the foregoing
instances. The term "permanent disability" shall mean a disability of the type
defined in Section 105(d)(4) of the Code.
(e) No option shall be exercisable during the lifetime of an optionee
by any person other than the optionee, his guardian or legal representative. The
Board shall have the power to set the time or times within which each option
shall be exercisable and to accelerate the time or times of exercise. To the
extent that an optionee has the right to exercise an option and purchase shares
pursuant thereto, the option may be exercised from time to time by written
notice to the Company stating the number of shares being purchased and
accompanied by payment in full of the purchase price for such shares. If shares
of stock are used in part or full payment for the shares to be acquired upon
exercise of the option, such shares shall be valued for the purposes of such
exchange at their fair market value as of the date of exercise of the option in
accordance with the provisions of paragraph 5(b). Any certificate for shares of
outstanding stock used to pay the purchase price shall be accompanied by a stock
power duly endorsed in blank by the registered owner of the certificate (with
the signature thereon guaranteed). If the certificate tendered by the optionee
in such payment covers more shares than are required for such payment, the
certificate shall also be accompanied by instructions from the optionee to the
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Company's transfer agent with respect to the disposition of the balance of the
shares covered thereby.
(f) No option shall be transferable by an optionee otherwise than by
will or the laws of descent and distribution.
(g) The aggregate fair market value (determined as of the time the
option is granted) of the stock with respect to which incentive stock options
are exercisable for the first time by such optionee during any calendar year
(under all such plans of the Company and any subsidiary corporation) shall not
exceed $100.000.
(h) Unless the shares of stock covered by the Plan have been registered
with the Securities and Exchange Commission pursuant to Section 5 of the
Securities Act of 1933, as amended, each optionee shall by accepting an option
represent and agree, for himself and his transferees by will or the laws of
descent and distribution, that all shares of stock purchased upon the exercise
of the option will be acquired for investment and not for resale or
distribution. Upon such exercise of any portion of an option, the person
entitled to exercise the same shall upon request of the Company furnish evidence
satisfactory to the Company (including a written and signed representation) to
the effect that the shares of stock are being acquired in good faith for
investment and not for resale or distribution. Furthermore, the Company may if
it deems appropriate affix a legend to certificates representing shares of stock
purchased upon exercise of options indicating that such shares have not been
registered with the Securities and Exchange Commission and may so notify its
transfer agent.
(i) An optionee or transferee of an optionee shall have no rights as a
shareholder of the Company with respect to any shares covered by any option
until the date of the issuance of a share certificate for such shares. No
adjustment shall be made for dividends (ordinary or extraordinary whether cash,
securities or other property) or distributions or other rights for which the
record date is prior to the date such share certificate is issued, except as
provided for in Paragraph 5(k). Nothing in the Plan or in any option agreement
shall confer upon any employee any right to continue in the employ of the
Company or any of its subsidiaries, or interfere in any way with any right of
the Company or any subsidiary to terminate the optionee's employment at any
time.
(j) In no event shall the Company be required to issue fractional
shares upon the exercise of an option.
(k) If the outstanding shares of stock of the class then subject to
this Plan are increased or decreased, or are
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changed into or exchanged for a different number or kind of shares or
securities, as a result of one or more reorganizations, recapitalizations, stock
splits, reverse stock splits, stock dividends and the like, appropriate
adjustments shall be made in the number and/or type of shares or securities for
which options may thereafter be granted under this Plan and for which options
then outstanding under this Plan may thereafter be exercised. Any such
adjustments in outstanding options shall be made without changing the aggregate
exercise price applicable to the unexercised portions of such options.
(l) Subject to the terms and conditions and within the limitations of
the Plan, the Board may modify extend or renew outstanding options granted under
the Plan, accept the surrender of outstanding options (to the extent not
theretofore exercised), and authorize the granting of new options in
substitution therefor (to the extent not theretofore exercised). Notwithstanding
the foregoing, no modification of an option shall, without the consent of the
optionee, alter or impair any rights of the optionee under the option.
(m) Each option may contain such other terms, provisions and conditions
not inconsistent with the Plan as may be determined by the Board or Committee,
such as without limitation discretionary performance standards, mandatory
purchase of shares on the open market on a pro rata basis or tax withholding
provisions.
6. Termination or Amendment of the Plan
The Board or Committee may at any time amend or terminate the Plan;
provided that, without approval of the shareholders of the Company there shall
be, except by operation of the provisions of Paragraph 5(k), no increase in the
total number of shares covered by the Plan, no change in the class of persons
eligible to receive options under the Plan, no reduction in the exercise price
of options granted under the Plan and no extension of the latest date upon which
options may be exercised; and provided further that, without the consent of the
optionee, no amendment may adversely affect any outstanding option or any
unexercised portion thereof. Notwithstanding any other provision to the
contrary, any provision of this Plan may be amended by the Board or Committee as
required to obtain necessary approvals of governmental agencies if such change
does not materially alter the rights and interests of shareholders of the
Company.
7. Shareholder Approval and Term of the Plan
The Plan shall be effective upon the first day of the month after which
the Board approves the Plan, subject to ratification by the shareholders of the
Company, and all
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necessary approvals of governmental agencies have been received. Unless sooner
terminated by the Board, the Plan will expire on December 31, 1997 with respect
to incentive stock options and December 31, 1998 with respect to nonqualified
stock options.
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EXHIBIT 5
[SQUIRE, SANDERS & DEMPSEY LETTERHEAD]
October 6, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: SUNRISE PRESCHOOLS, INC.
STOCK OPTION PLAN
Ladies and Gentlemen:
We have acted as counsel to Sunrise Preschools, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") filed under the Securities Act of 1933
relating to the registration of 240,000 shares of its Common Stock, $.01 par
value (the "Shares"), issuable pursuant to the Company's Stock Option Plan (the
"Plan").
In that connection, we have examined such documents, corporate records
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Certificate of Incorporation, as amended, and the
Bylaws of the Company.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Delaware.
2. The Shares, when issued and sold in accordance with the terms of the
Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Christopher D. Johnson
Christopher D. Johnson
<PAGE> 1
EXHIBIT 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated September 26, 1994
included in Sunrise Preschools, Inc.'s Form 10-KSB for the year ended July 30,
1994 and to all references to our firm included in this registration statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona,
October 4, 1995.
