As filed with the Securities and Exchange Commission on December 6, 1995
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WASATCH EDUCATION SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
Utah 87-0458433
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
5250 South 300 West, Suite #101
Salt Lake City, UT 84107
(Address of principal executive offices, including zip code)
1995 EMPLOYEE STOCK OPTION PLAN
1995 EXECUTIVE OFFICER STOCK OPTION PLAN
(Full title of the plans)
Ralph J. Brown
Chief Financial Officer
5250 South 300 West, Suite #101
Salt Lake City, UT 84107
(801) 261-1001
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Robert B. Dellenbach, Esq.
Fenwick & West
Two Palo Alto Square
Palo Alto, California 94306
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
<S> <C> <C> <C> <C>
Common Stock, no
par value 1,310,000(1) $0.52(2) $681,200(2) $234.90
Common Stock, no
par value 740,000(3) $0.41(2) $303,400 $104.62
<FN>
<F1>
(1) Shares available for grant and not subject to outstanding options as of
November 30, 1995 under the Registrant's 1995 Employee Stock Option Plan
and under Registrant's 1995 Executive Officer Stock Option Plan.
<F2>
(2) Estimated as of November 30, 1995 pursuant to Rule 457(c) solely for the
purpose of calculating the amount of the registration fee.
<F3>
(3) Shares issuable upon exercise of outstanding options granted as of November
30, 1995 under the Registrant's 1995 Employee Stock Option Plan and under
Registrant's 1995 Executive Officer Stock Option Plan.
</FN>
</TABLE>
This Registration Statement, including exhibits, consists of 9 sequentially
numbered pages. The Index to Exhibits appears on sequentially numbered page 7.
<PAGE>
Item 3. Incorporation of Documents by Reference.
The following documents filed by Wasatch Education Systems Corporation (the
"Registrant").with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference:
(a) The Registrant's annual report on Form 10-KSB (File No. 0-17190) for the
fiscal year ended June 30, 1995 filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
which contains among other things the financial statements of the
Registrant for the two year period ended June 30, 1995, together with the
report thereon of Arthur Andersen LLP, independent public accountants.
(b) The Registrant's Quarterly Reports on Form 10-QSB (File No. 0-17190) for
the quarters ended September 30, 1995.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on October 4, 1988
with the Commission under Section 12(g) of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold,
shall be deemed 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.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant's Articles of Incorporation include a provision that eliminates
the personal liability of its directors and/or officers to the Registrant or
its shareholders for monetary damages for breach of the director's fiduciary
duties in certain circumstances. This limitation has no effect on a director's
liability (i) for acts or omissions not in good faith, or for intentional
misconduct or knowing violation of law, or (ii) for a breach of the director's
duty of loyalty to the Registrant or its shareholders.
The Registrant's Articles of Incorporation also provide for the
indemnification of any and all persons who may serve at any time as a director
or officer of the Registrant. The Articles provide for such indemnification of
directors and/or officers against any and all expenses, including amounts
paid upon judgments, attorney fees, and amounts paid in settlement before or
after suit is commenced, which are actually and necessarily incurred by such
persons in connection with defense or settlement of any claim, action, suit
or proceeding in which they, or any of them, are made parties, or which may
be asserted against them or any of them by reason of being, or having been,
directors or officers of the corporation, except in relation to such matters
in which such director or officer shall be adjudged to be liable for his own
negligence or misconduct in the performance of his duty. Such indemnification
shall be in addition to any other rights to which those indemnified may be
entitled under any law, bylaw, agreement, vote of stockholders, or otherwise.
<PAGE>
The Registrant's Bylaws provide for indemnification of the Registrant's
directors and officers. The Registrant's Bylaws provide for the
indemnification of such persons as provided under the Utah Business Corporation
Act, except that no such person shall be indemnified against, or be reimbursed
for, any expense incurred in connection with any claim or liability arising
out of such persons's own negligence or willful misconduct. In addition, the
Registrant, at its discretion, may provide indemnification to persons whom
the Registrant is not obligated to indemnify. The Bylaws also allow the
Registrant to enter into indemnification agreements with individual directors,
officers and employees.
Section 16-10a-902 of the Utah Business Corporation Act provides that a
corporation may indemnify any individual, made a party to a proceeding because
he is or was a director, against liability incurred in the proceeding if (a)
his conduct was in good faith; (b) he reasonably believed that his conduct
was in, or not opposed to, the corporation's best interests; and (c) in the
case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful. A corporation may not indemnify a director who satisfies
(a) through (c) above if the indemnification is sought (i) in connection with
a proceeding by or in the right of the corporation in which the director was
adjudged liable to the corporation; or (ii) in connection with any other
proceeding charging that the director derived an improper personal benefit,
whether or not involving action in his official capacity, in which proceeding
he was adjudged liable on the basis that he derived an improper personal
benefit.
Section 16-10a 907 provides that, unless the corporation's articles of
incorporation provide otherwise, the 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 a corporation may also 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 articles of incorporation, bylaws, general or specific
action of its board of directors, or contract.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.01 Registrant's Articles of Incorporation, as amended.*
4.02 Registrant's Bylaws (incorporated herein by reference to the
filed Exhibit to the Registrant's Registration Statement on Form
S-1 (File No. 33-23885) declared effective by the Commission on
October 4, 1988 (the "Form S-1")).
4.03 Registrant's 1995 Employee Stock Option Plan and related
documents.*
4.04 Registrant's 1995 Executive Officer Stock Option Plan and related
documents.*
5.01 Opinion of Fenwick & West.
23.01 Consent of Fenwick & West (included in Exhibit 5.01).
23.02 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.01 Power of Attorney (see page 5).
* Incorporated by reference to the filed Exhibit to the Registrant's Annual
Report on Form 10-KSB (File No. 0-17190) filed on October 13, 1995.
<PAGE>
Item 9. Undertakings.
The undersigned Registrant hereby undertakes to:
(1) File, during any period in which it offers or sells securities,
a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the Registration Statement; and
(iii) Include any additional or changed material information on
the plan of distribution;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is incorporated by reference from periodic reports filed
by the Registrant under the Exchange Act.
(2) For the purpose of determining any liability under the
Securities Act, treat each post-effective amendment as a new registration
statement of the securities offered, and the offering of the securities at
that time to be the initial bona fide offering thereof.
(3) File a post-effective amendment to remove from registration
any of the securities being registered which remain unsold at the end of the
offering.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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 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 hereby, 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 and will be governed by the final adjudication of such issue.
<PAGE>
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 Salt Lake City, State of Utah, on the 6th day of
December, 1995.
WASATCH EDUCATION SYSTEMS CORPORATION
By: /s/Ralph J. Brown
Ralph J. Brown
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Barbara Morris and Ralph J. Brown, and each of
them, her or his true and lawful attorneys-in-fact and agents with full power
of substitution, for her or him and in her or his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement on Form S-8, and to file
the same with all exhibits thereto and all 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 and 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 her, his or their substitute or substitutes, 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 by the following persons in the capacities and on
the date indicated.
Signature Title Date
Principal Executive Officer:
/s/ Barbara Morris President, Chief Executive December 6, 1995
Barbara Morris Officer and a Director
Principal Financial Officer
and Accounting Officer:
/s/ Ralph J. Brown Chief Financial Officer December 6, 1995
Ralph J. Brown
<PAGE>
Additional Directors:
Signature Title Date
/s/ Gregory T. George Director December 6, 1995
Gregory T. George
/s/ Jeffrey W. Keimer Director December 6, 1995
Jeffrey W. Keimer
/s/ Carolyn Poe Director December 6, 1995
Carolyn Poe
Exhibit Index
Exhibit No. Description Page
4.01 Registrant's Articles of Incorporation, as amended. *
4.02 Registrant's Bylaws (incorporated herein by reference
to the filed Exhibit to the Registrant's Registration
Statement on Form S-1 (File No. 33-23885) declared
effective by the Commission on October 4, 1988).
4.03 Registrant's 1995 Employee Stock Option Plan and
related documents.*
4.04 Registrant's 1995 Executive Officer Stock Option
Plan and related documents.*
5.01 Opinion of Fenwick & West.
23.01 Consent of Fenwick & West (included in Exhibit 5.01).
23.02 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.01 Power of Attorney (see page 5).
* Incorporated by reference to the filed Exhibit to the Registrant's Annual
Report on Form 10-KSB (File No. 0-17190) filed on October 13, 1995.
EXHIBIT 5.01
December 6, 1995
Wasatch Education Systems Corporation
5250 South 300 West, Suite #101
Salt Lake City, UT 84107
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by you with the Securities and Exchange
Commission on or about December 6, 1995 in connection with the registration
under the Securities Act of 1933, as amended, of an aggregate of 2,050,000
shares of your Common Stock (the "Common Stock") to be sold by you pursuant
to (i) the stock options granted or to be granted by you under your 1995
Employee Stock Option Plan (the "Employee Plan"), and (ii) the stock options
granted or to be granted by you under your 1995 Executive Officer Stock Option
Plan (the "Executive Officers Plan").
As your counsel, we have examined the proceedings taken by you in connection
with (i) the adoption of the Employee Plan and the granting of options
thereunder and (ii) the adoption of the Executive Officer Plan and the granting
of options thereunder.
Assuming shareholder approval of the Employee Plan and the Executive Officer
Plan (which approval is being submitted to the shareholders at the annual
shareholder meeting on January 23, 1996), it is our opinion that the 2,050,000
shares of Common Stock that may be issued and sold by you pursuant to (i) the
stock options granted under the Employee Plan, when issued and sold in the
manner referred to in the relevant Prospectus associated with the Registration
Statement, the Employee Plan and accompanying stock options, and (ii) the stock
options granted or to be granted under the Executive Officer Plan, when issued
and sold in the manner referred to in the relevant Prospectus associated with
the Registration Statement, the Executive Officer Plan and accompanying stock
options, will be legally issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement and any amendments thereto which have been approved by
us.
Very truly yours,
/s/Fenwick & West
Fenwick & West
EXHIBIT 23.02
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 August 4, 1995
included in the Wasatch education Systems Corporation's Form 10-KSB for the
fiscal year ended June 30, 1995 and references to our Firm included in this
Registrations Statement.
/s/ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
December 5, 1995
