As filed with the Securities and
Exchange Commission on August 10, 1999 Registration No. 333-____
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
ITT EDUCATIONAL SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-2061311
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5975 CASTLE CREEK PARKWAY,
N. DRIVE, INDIANAPOLIS, INDIANA 46250-0466
(Address of Principal Executive Offices) (Zip Code)
1999 OUTSIDE DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
CLARK D. ELWOOD
5975 CASTLE CREEK PARKWAY, N. DRIVE, INDIANAPOLIS, INDIANA 46250-0466
(Name and address of agent for service)
(317) 594-9499
(Telephone number, including area code, of agent for service)
COPY TO:
JAMES A. ASCHLEMAN
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
CALCULATION OF REGISTRATION FEE
TITLE OF
SECURITIES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
Common
Stock,
$0.01 par
value 250,000 $21.6875 (3) $5,421,875 (3) $1,507.28 (3)
(1)Pursuant to Rule 416 under the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also registers such additional shares
of Common Stock as may be offered or issued to prevent dilution
resulting from stock splits, stock dividends and similar transactions.
(2)It is impracticable to state the maximum offering price. Shares offered
pursuant to stock options granted under the 1999 Outside Directors Stock
Option Plan are to be offered at one hundred percent (100%) of the fair
market value of one share of Common Stock of ITT Educational Services,
Inc. on the date the option is granted.
(3)Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) and (h) under the Securities Act
using the average of the high and low sale prices of the Common Stock as
reported by the NYSE on August 6, 1999, which was $21.6875 per share.
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The Section 10(a) prospectuses for the 1999 Outside Directors Stock
Option Plan is not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-K for the year ended December
31, 1998 and the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act"), including any
amendments or reports filed for the purpose of updating such description,
are incorporated herein by reference. All other reports filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
for which audited financial statements are contained in the annual report
described above are incorporated herein by reference. All documents filed
by the Company pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act after the date hereof and prior to the termination of the
offering of the securities offered hereby shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing of such documents with the Commission. The Company will promptly
provide without charge to each person to whom a prospectus is delivered, a
copy of any or all information that has been incorporated herein by
reference (not including exhibits to the information that is incorporated
by reference unless such exhibits are specifically incorporated by
reference into such information), upon the written or oral request of such
person directed to the Secretary of the Company at its principal offices,
5975 Castle Creek Parkway, N. Drive, Indianapolis, Indiana 46250-0466,
(317) 594-9499.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Reference is made to Article VI of the Company's Restated Certificate
of Incorporation, filed as Exhibit 4.1 hereto, and Article VII of the
Company's By-Laws, filed as Exhibit 4.2 hereto, which provides that the
Company shall indemnify and advance expenses to its currently acting and
former directors and officers, and may indemnify and advance expenses to
its currently acting and former employees and agents, to the fullest extent
permitted by applicable law, including the Delaware General Corporation
Law, as amended from time to time (but, in the case of any such amendment,
only to the extent that such amendment permits the Company to provide
broader indemnification rights than said law permitted the Company to
provide prior to such amendment). The Company may also enter into one or
more agreements with any person which provide for indemnification greater
or different than that provided in Article VI of the Company's Restated
Certificate of Incorporation. In addition, insurance policies provide for
the indemnification of the Company's directors and officers, as well as for
reimbursement of the Company for amounts paid by the Company above certain
limits in indemnifying its directors and officers, for liabilities under
the Securities Act, subject to applicable retentions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by reference to the Index
to Exhibits.
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;
(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 with or furnished to the Commission 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 the 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.
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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Indianapolis, State of Indiana,
on August 9, 1999.
ITT EDUCATIONAL SERVICES, INC.
By: /S/ RENE R. CHAMPAGNE
Rene R. Champagne
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their respective
capacities and on the respective dates indicated opposite their names.
Each person whose signature appears below hereby authorizes each of Rene R.
Champagne, Gene A. Baugh and Clark D. Elwood, each with full power of
substitution, to execute in the name and on behalf of such person any post-
effective amendment to this Registration Statement and to file the same,
with exhibits thereto, and other documents in connection therewith, making
such changes in this Registration Statement as the registrant deems
appropriate, and appoints each of Rene R. Champagne, Gene A. Baugh and
Clark D. Elwood, each with full power of substitution, attorney-in-fact to
sign any amendment and any post-effective amendment to this Registration
Statement and to file the same, with exhibits thereto, and other documents
in connection therewith.
SIGNATURES CAPACITY DATE
/S/ RENE R. CHAMPAGNE Chairman, President, Chief Executive August 9, 1999
Rene R. Champagne Officer and Director (Principal
Executive Officer)
/S/ GENE A. BAUGH Senior Vice President and Chief August 9, 1999
Gene A. Baugh Financial Officer (Principal
Financial Officer and Principal
Accounting Officer)
/S/ RAND V. ARASKOG Director August 9, 1999
Rand V. Araskog
/S/ JOHN E. DEAN Director August 9, 1999
John E. Dean
/S/ JAMES D. FOWLER, Jr. Director August 9, 1999
James D. Fowler, Jr.
/S/ LESLIE LENKOWSKY Director August 9, 1999
Leslie Lenkowsky
/S/ HARRIS N. MILLER Director August 9, 1999
Harris N. Miller
/S/ DANIEL P. WEADOCK Director August 9, 1999
Daniel P. Weadock
/S/ VIN WEBER Director August 9, 1999
Vin Weber
<PAGE>
INDEX TO EXHIBITS
Exhibit DESCRIPTION OF EXHIBIT
NO.
4.1 Restated Certificate of Incorporation of the Registrant, as amended
to date. (The copy of this Exhibit filed as Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the period ending June
30, 1999, is incorporated by reference.)
4.2 By-Laws of the Registrant, as amended to date. (The copy of this
Exhibit filed as Exhibit 4.2 to the Registrant's Registration
Statement on Form S-8 (Registration No. 333-38883) is incorporated
herein by reference.)
4.3 1999 Outside Directors Stock Option Plan of the Registrant.
5 Opinion of Baker & Daniels, counsel for Registrant, as to the
legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Baker & Daniels (included in the Baker & Daniels Opinion
filed as Exhibit 5).
24 Powers of Attorney (included on the Signature Page of the
Registration Statement).
EXHIBIT 4.3
1999 OUTSIDE DIRECTORS STOCK OPTION PLAN
1. PURPOSE. The purpose of the Plan is to advance the interests of
the Company and its stockholders by encouraging increased Common Stock
ownership by members of the Board who are not employees of the Company or
any of its Subsidiaries, in order to promote long-term stockholder value
through directors' continuing ownership of the Common Stock.
2. DEFINITIONS. Unless the context clearly indicates otherwise, the
following terms, when used in the Plan, shall have the meanings set forth
below.
"Annual Meeting" shall mean the annual meeting of the
shareholders of the Company (as defined herein).
"Board" shall mean the Board of Directors of the Company, as it
may from time to time be constituted.
"Common Stock" shall mean the Common Stock, $0.01 par value, of
the Company, and shall include the Common Stock as it may be
changed from time to time as described in Paragraph 8 of the
Plan.
"Company" shall mean ITT Educational Services, Inc., and any
successor by merger or consolidation.
"Eligible Director" shall mean a member of the Board who is not
at the time of receipt of an Option an employee of the Company or
any of its Subsidiaries.
"Fair Market Value" of the Common Stock of the Company means the
last sale price on the applicable date (or if there is no
reported sale on such date, on the last preceding date on which
any reported sale occurred) of one share of Common Stock on the
principal exchange on which such shares are listed, or if not
listed on any exchange, on the Nasdaq National Market System or
any similar system then in use, or if the shares of Common Stock
are not listed on the Nasdaq National Market System, the mean
between the closing high bid and low asked quotations of one such
share on the date in question as reported by Nasdaq or any
similar system then in use, or, if no such quotations are
available, the Fair Market Value on such date of one share of
Common Stock as the Board shall determine.
"Grantee" shall mean an Eligible Director who has been granted an
Option.
"Option" shall mean a non-qualified option to purchase Common
Stock held in the treasury granted by the Company pursuant to the
terms of the Plan.
"Plan" shall mean the 1999 Outside Directors Stock Option Plan,
as set forth herein and as amended from time to time.
"Subsidiary" shall mean any corporation at least 50% of whose
outstanding voting stock is owned, directly or indirectly, by the
Company.
3. ADMINISTRATION. The Plan shall be administered by the Board.
The Board shall have all the powers vested in it by the terms of the Plan,
such powers to include authority (within the limitations described herein)
to prescribe the form of the agreements embodying Options. The Board shall
have the power to construe the Plan, to determine all questions arising
thereunder, and to adopt and amend such rules and regulations for the
administration of the Plan as it may deem desirable. Any decision of the
Board in the administration of the Plan, as described herein, shall be
final and conclusive. The Board may act only by a majority of its members
in office, except that the members thereof may authorize any one or more of
their members or the Secretary or any other officer of the Company to
execute and deliver documents on behalf of the Board. No member of the
Board shall be liable for anything done or omitted to be done by him or by
any other member of the Board in connection with the Plan, except for his
own willful misconduct or as expressly provided by statute.
4. PARTICIPATION. Each Eligible Director shall be eligible to
receive Option grants in accordance with Paragraphs 5, 6, 7 and 8 below.
5. GRANTS UNDER THE PLAN.
(a) Options may be granted under the Plan, subject to the terms,
conditions and restrictions specified in Paragraphs 6, 7 and 8 below.
There may be issued under the Plan pursuant to the exercise of Options an
aggregate of not more than 250,000 shares of Common Stock, subject to
adjustment as provided in Paragraph 8 below. Shares of Common Stock that
are the subject of an Option but not purchased prior the expiration of the
Option, shall thereafter be considered unissued for purposes of the maximum
number of shares that may be issued under the Plan, and may again be the
subject of Option grants under the Plan. If at any time, the shares
remaining available for Option grants are not sufficient to make all Option
grants then required to be made under the Plan, no Option grants shall be
made.
(b) An Eligible Director to whom an Option is provided to be
granted or is granted under the Plan (and any person succeeding to such an
Eligible Director's right pursuant to the Plan), shall have no rights as a
stockholder with respect to any shares of Common Stock issuable pursuant to
any such Option until such Option is exercised. Except as provided in
Paragraph 8 below, no adjustment shall be made for dividends,
distributions, or other rights (whether ordinary or extraordinary, and
whether in cash, securities, or other property) for which the record date
is prior to the date an Option is exercised. Except as expressly provided
for in the Plan, no Eligible Director or other person shall have any claim
or right to be granted an Option. Neither the Plan nor any action taken
hereunder shall be construed as giving any Eligible Director any right to
be retained in the service of the Company.
6. AUTOMATIC OPTION GRANTS. On the tenth business day following the
date of the Annual Meeting each year, commencing in 2000, each Eligible
Director who was an Eligible Director immediately prior to the Annual
Meeting in that year and who remains an Eligible Director on the tenth
business day following the date of the Annual Meeting, shall be
automatically granted an Option to purchase 2,000 shares of Common Stock
(subject to adjustment as provided in Paragraph 8). Each Option shall be
evidenced by an agreement in such form as the Board shall prescribe from
time to time in accordance with the Plan and shall comply with the
following terms and conditions and such additional terms and conditions not
inconsistent with the Plan as may from time to time be prescribed by the
Board.
(a) The Option exercise price per share shall be one hundred
percent (100%) of the Fair Market Value of a share of Common
Stock on the date the Option is granted.
(b) The Option shall not be transferable by the Grantee
otherwise than by will or the laws of descent and distribution,
and shall be exercisable during his lifetime only by him.
(c) The Option shall not be exercisable before the
expiration of one year from the date it is granted.
(d) The Option shall not be exercisable after the expiration
of ten years from the date it is granted.
(e) To exercise an Option under the Plan, the Grantee must
give written notice to the Company specifying the number of
shares of Common Stock with respect to which the Grantee elects
to exercise the Option together with full payment of the Option
exercise price. The date of exercise shall be the date on which
the notice is received by the Company. Payment may be made
either:
(i) in cash (including check, bank draft or money order);
(ii) by tendering shares of Common Stock already owned by
the Grantee and having a Fair Market Value on the date of
exercise equal to the Option exercise price;
(iii) by the simultaneous "cashless" exercise of the Option
and the sale of the shares of Common Stock issuable upon exercise
of the Option; or
(iv) by a combination of (i), (ii) or (iii).
(f) An Option shall not be exercisable unless the person
exercising the Option has been, at all times during the period
beginning with the date of grant of the Option and ending on the
date of such exercise, in continuous service on the Board, except
that:
(i) if any Grantee of an Option shall die or
become permanently disabled or shall retire with the
consent of the Board, holding an Option that has not
expired and has not been fully exercised, he or his
executor, administrators, heirs, or distributees, as
the case may be, may, at any time within one year after
the date of such event (but in no event after the
Option has expired under the provisions of subparagraph
6(d) above), exercise the Option with respect to any
shares as to which the Grantee could have exercised the
Option at the time of his death, disability, or
retirement; or
(ii) if a Grantee shall cease to serve as a
director of the Company for any reason other than those
set forth in 6(f)(i) above, while holding an Option
that has not expired and has not been fully exercised,
the Grantee, at any time within three months of the
date he ceased to be such an Eligible Director (but in
no event after the Option has expired under the
provisions of subparagraph 6(d) above), may exercise
the Option with respect to any shares of Common Stock
as to which he could have exercised the Option on the
date he ceased to be such an Eligible Director.
(g) Each Grantee of an Option shall pay to the Company, or
make arrangements satisfactory to the Board regarding the payment
of, any federal, state, or local taxes of any kind required by
law to be withheld with respect to the shares of Common Stock as
to which an Option is being exercised.
7. SPECIAL OPTION GRANTS. The Board, in its discretion, may also
make special grants of Options to Eligible Directors. Each such Option
shall be evidenced by an agreement in such form as the Board shall
prescribe from time to time in accordance with the Plan and shall comply
with the terms and conditions set forth in subparagraphs 6(a) and 6(b)
above and subparagraphs 6(d) through 6(g) above and such additional terms
and conditions not inconsistent with the Plan as may from time to time be
prescribed by the Board.
8. DILUTION AND OTHER ADJUSTMENTS. In the event of any change in
the outstanding Common Stock by reason of any stock split, stock dividend,
recapitalization, merger, consolidation, reorganization, combination or
exchange of shares or other similar event, the number or kind of shares
that may be issued under the Plan pursuant to Paragraphs 5, 6 and 7 above,
the number or kind of shares subject to any outstanding Option, and the
Option exercise price per share under any outstanding Option, shall be
automatically adjusted so that the proportionate interest of the Eligible
Directors or of the Grantee shall be maintained as before the occurrence of
such event. Any adjustment in outstanding Options shall be made without
change in the total Option exercise price applicable to the unexercised
portion of such Options and with a corresponding adjustment in the Option
exercise price per share. Any adjustment permitted by this Paragraph shall
be conclusive and binding for all purposes of the Plan.
9. MISCELLANEOUS PROVISIONS.
(a) An Eligible Director's rights and interests under the Plan
may not be assigned or transferred in whole or in part either directly or
by operation of law or otherwise (except in the event of a participant's
death, by will or the laws of descent and distribution), including, but not
by way of limitation, execution, levy, garnishment, attachment, pledge,
bankruptcy, or in any other manner, and no such right or interest of any
Eligible Director in the Plan shall be subject to any obligation or
liability of such Eligible Director.
(b) If the shares of Common Stock that are the subject of an
Option are not registered under the Securities Act of 1933, as amended,
pursuant to an effective registration statement, the Grantee, if the Board
shall deem it advisable, may be required to represent and agree in writing
(i) that any shares of Common Stock acquired by such Grantee pursuant to
the Plan will not be sold except pursuant to an exemption from registration
under said Act and (ii) that such Grantee is acquiring such shares of
Common Stock for his own account and not with a view to the distribution
thereof. No shares of Common Stock shall be issued hereunder unless
counsel for the Company shall be satisfied that such issuance will be in
compliance with applicable federal, state and other securities laws.
(c) By accepting any Options under the Plan, each Grantee and
each person claiming under or through him shall be conclusively deemed to
have indicated his acceptance and ratification of and consent to, the terms
and conditions of the Plan and any action taken under the Plan by the
Company or the Board.
10. AMENDMENT. The Board may at any time and from time to time and
in any respect amend or modify this Plan; provided, however, that the Board
may not amend this Plan more than once during any six-month period, and
provided further, that any amendments requiring shareholder approval in
order to maintain the exemption of the Plan under Rule 16b-3 (promulgated
pursuant to the Securities Exchange Act of 1934, as amended), as in effect
from time to time, shall be subject to approval by the shareholders of the
Company in the manner required by such Rule.
11. TERMINATION. This Plan shall terminate upon the earlier of the
following dates or events to occur:
(a) Upon the adoption of a resolution of the Board
terminating the Plan; or
(b) Upon the award or the purchase upon exercise of Options
of all the shares of Common Stock provided to be awarded or the
subject of Options under Paragraph 5, 6 and 7, as adjusted
pursuant to Paragraph 8.
No termination of the Plan shall materially and adversely affect any of the
rights or obligations of any Grantee, without his consent, under any Option
theretofore granted under the Plan.
EXHIBIT 5
BAKER & DANIELS
300 NORTH MERIDIAN STREET
SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
August 9, 1999
ITT Educational Services, Inc.
5975 Castle Creek Parkway, N. Drive
Indianapolis, Indiana 46250-0466
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to ITT Educational Services, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing
with the Securities and Exchange Commission (the "Commission") of the
Company's Registration Statement on Form S-8 (the "Registration Statement")
under the Securities Act of 1933 (the "Act"), registering the offer and
sale of up to 250,000 shares of the Company's common stock, $0.01 par value
(the "Shares"), pursuant to the Company's 1999 Outside Directors Stock
Option Plan (the "Plan").
In so acting, we have examined and relied upon the originals, or copies
certified or otherwise identified to our satisfaction, of such records,
documents and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when the Registration Statement shall have become
effective and the Shares have been issued in accordance with the Plan, the
Shares will be validly issued, fully paid and non-assessable.
Our opinion expressed above is limited to the federal law of the United
States and the law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
/s/ BAKER & DANIELS
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 9, 1999 relating to the
financial statements and financial statement schedules, which appears in
ITT Educational Services, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
Indianapolis, Indiana
August 10, 1999
