-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MYXJPQeOcVr4xbhpVY5lq0KFuleGbjbHOfqAMJAu7KFCTSh1qg8GyhXxDjDPn4u3 ce4mMJ8MMlu79cK3SSdqjQ== 0000069999-00-000007.txt : 20000428 0000069999-00-000007.hdr.sgml : 20000428 ACCESSION NUMBER: 0000069999-00-000007 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000427 EFFECTIVENESS DATE: 20000427 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NATIONAL COMPUTER SYSTEMS INC CENTRAL INDEX KEY: 0000069999 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROCESSING & DATA PREPARATION [7374] IRS NUMBER: 410850527 STATE OF INCORPORATION: MN FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-35726 FILM NUMBER: 610319 BUSINESS ADDRESS: STREET 1: 11000 PRAIRIE LAKES DR CITY: MINNEAPOLIS STATE: MN ZIP: 55344 BUSINESS PHONE: 6128293000 MAIL ADDRESS: STREET 1: P O BOX 9365 CITY: MINNEAPOLIS STATE: MN ZIP: 55440 S-8 1 1999 NON-EMPLOYEE DIRECTOR STK OPTION PLAN As filed with the Securities and Exchange Commission on April 27, 2000 Registration No. 333-_________ - ----------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ----------- NATIONAL COMPUTER SYSTEMS, INC. (Exact name of registrant as specified in its charter) Minnesota 41-0850527 (State or other jurisdiction (I.R.S. Employer of incorporation) Identification No.) 11000 Prairie Lakes Drive Eden Prairie, Minnesota 55344 (Address of principal executive offices) (Zip Code) NATIONAL COMPUTER SYSTEMS, INC. 1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (Full title of the plan) J.W. Fenton, Jr. Copy to: Secretary/Treasurer Jay L. Swanson National Computer Systems, Inc. Dorsey & Whitney LLP 11000 Prairie Lakes Drive Pillsbury Center South Eden Prairie, Minnesota 55344 220 South Sixth Street (Name and address of agent for service) Minneapolis, Minnesota 55402 (952) 829-3040 (Telephone number, including area code, of agent for service) ---------- 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 per share (1) price fee - ------------------------------------------------------------------------------ Common Stock, 100,000 $47.00 $4,700,000 $1,240.80 $.03 par value - ------------------------------------------------------------------------------ (1) Estimated solely for the purpose of calculating the registration fee, based upon the average of the high and low prices of the Common Stock as reported on the Nasdaq National Market on April 20, 2000. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents which have been filed by National Computer Systems, Inc. (the "Company") with the Securities and Exchange Commission are incorporated by reference in this Registration Statement, as of their respective dates: (a) The Company's annual report on Form 10-K for the fiscal year ended January 29, 2000. (b) The descriptions of the Company's Common Stock contained in the Company's registra-tion statements on Form 8-A and amendments thereto dated June 2, 1969, June 24, 1987, March 13, 1996 and December 15, 1998. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of filing of such documents. Item 6. Indemnification of Directors and Officers Section 302A.521 of the Minnesota Statutes requires, among other things, the indemnification of persons made or threatened to be made a party to a proceeding by reason of acts or omissions performed in their official capacity as an officer, director, employee or agent of the corporation against judgments, penalties and fines (including attorneys' fees) if such person is not otherwise indemnified, acted in good faith, received no improper benefit, believed that such conduct was in the best interests of the corporation, and, in the case of criminal proceedings, had no reason to believe the conduct was unlawful. In addition, Section 302A.521, subd. 3, requires payment by the corporation, upon written request, of reasonable expenses in advance of final disposition in certain instances. A decision as to required indemnification is made by a disinterested majority of the Board of Directors present at a meeting at which a disinterested quorum is present or by a designated committee of the Board, by special legal counsel, by the shareholders or by a court. Article IX of the Company's Restated Articles of Incorporation, as amended, provides that a director of the Company shall not be personally liable to the Company or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its shareholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for authorizing a dividend, stock repurchase or redemption or other distribution in violation of Minnesota law or for violation of certain provisions of Minnesota securities laws; (iv) for any transaction from which the director derived an improper personal benefit; or (v) for any act or omission occurring prior to the date when Article IX became effective. The Bylaws of the Company provide that the Company shall indemnify such persons, for such liabilities, in such manner, under such circumstances and to such extent as permitted by Section 302A.521, as now enacted or hereafter amended. Item 8. Exhibits Exhibit Number Description - -------- ----------- 4 Amended and Restated Rights Agreement dated as of December 8, 1998 between the Company and Norwest Bank Minnesota, N.A. (including the form of Right Certificate attached as Exhibit B thereto) is incorporated herein by reference to Exhibit 1 to Amendment No. 3 to Form 8-A/A dated December 15, 1998. 5 Opinion of Counsel for the Company 23.1 Consent of Independent Auditors 23.2 Consent of Counsel for the Company (included in Exhibit 5) 24 Power of Attorney Item 9. Undertakings The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment to this 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. The undersigned registrant hereby undertakes 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. 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 Eden Prairie, State of Minnesota. NATIONAL COMPUTER SYSTEMS, INC. Dated: April 25, 2000 By: /s/ J.W. Fenton, Jr. ----------------------------- J.W. Fenton, Jr. Secretary/Treasurer 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 dates indicated: Name Position By: Russell A. Gullotti* Chairman of the Board of Directors, President and - --------------------------- Chief Executive Officer Russell A. Gullotti (principal executive officer) By: William J. Cadogan* Director - --------------------------- William J. Cadogan By: David C. Cox* Director - --------------------------- David C. Cox By: Delores M. Etter* Director - --------------------------- Delores M. Etter By: Jean B. Keffeler* Director - --------------------------- Jean B. Keffeler By: John J. Rando* Director - --------------------------- John J. Rando By: Stephen G. Shank* Director - --------------------------- Stephen G. Shank By: John E. Steuri* Director - --------------------------- John E. Steuri By: Jeffrey W. Taylor* Vice President and Chief Financial Officer - --------------------------- (principal financial and accounting officer) Jeffrey W. Taylor * Executed on behalf of the indicated officers and directors of the registrant by J.W. Fenton, Jr., Secretary/Treasurer, duly appointed attorney-in-fact. /s/ J.W. Fenton, Jr. - --------------------------- (Attorney-in-fact) Dated: April 25, 2000 EXHIBIT INDEX Exhibit Number Description Page 5 Opinion of Counsel for the Company . . . . . . . . . . . . . 23.1 Consent of Independent Auditors . . . . . . . . . . . . . . 23.2 Consent of Counsel for the Company (included in Exhibit 5) . 24 Power of Attorney . . . . . . . . . . . . . . . . . . . . . EX-5 2 OPINION OF COUNSEL FOR THE COMPANY EXHIBIT 5 National Computer Systems, Inc. 11000 Prairie Lakes Drive Eden Prairie, Minnesota 55344 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel to National Computer Systems, Inc., a Minnesota corporation (the "Company"), in connection with a Registration Statement on Form S-8 relating to the sale by the Company from time to time of up to 100,000 shares of Common Stock, $ .03 par value, of the Company (the "Shares"), pursuant to the Company's 1999 Non-Employee Director Stock Option Plan (the "Plan"). We have examined such documents and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of the opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates of officers of the Company and of public officials. Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance, delivery and payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable. Our opinions expressed above are limited to the laws of the State of Minnesota. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Dated: April 25, 2000 Very truly yours, /s/ Dorsey & Whitney LLP EX-23.1 3 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the National Computer Systems 1999 Non-Employee Director Stock Option Plan of National Computer Systems, Inc. and subsidiaries, of our report dated March 6, 2000, with respect to the consolidated financial statements of National Computer Systems, Inc. and subsidiaries incorporated by reference in its Annual Report on Form 10-K for the year ended January 29, 2000, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Minneapolis, Minnesota April 25, 2000 EX-24 4 POWER OF ATTORNEY EXHIBIT 24 POWER OF ATTORNEY 1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN The undersigned directors and officers of NATIONAL COMPUTER SYSTEMS, INC. hereby constitute and appoint J. W. Fenton, Jr. their true and lawful attorney-in-fact and agent, for each of them and in their name, place and stead, in any and all capacities (including without limitation, as Director and/or Principal Executive Officer, Principal Financial Officer, Principal Accounting Officer or any other officer of the Company), to sign a registration statement, and any and all amendments thereto, including post-effective amendments, on Form S-8 relating to the issuance of Common Stock of National Computer Systems, Inc. pursuant to National Computer Systems, Inc. 1999 Non-Employee Director Stock Option Plan, which is to be filed with the Securities and Exchange Commission, with all exhibits thereto, and any and all documents in connection therewith, hereby granting unto said attorney-in-fact and agent full power and authority to do and perform any and all acts and things requisite and necessary to be done, and hereby ratifying and confirming all that said attorney-in-fact and agent may do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have hereunto set their hands this 2nd day of March, 1999. /s/ Russell A. Gullotti /s/ Stephen G. Shank - -------------------------- ------------------------ Russell A. Gullotti Stephen G. Shank /s/ William J. Cadogan /s/ John E Steuri - -------------------------- ------------------------ William J. Cadogan John E. Steuri /s/ David C. Cox /s/ Jeffrey W. Taylor - -------------------------- ------------------------ David C. Cox Jeffrey W. Taylor /s/ Delores M. Etter - -------------------------- Delores M. Etter Signed on this 7th day of March, 2000 /s/ Jean B. Keffeler /s/ John J. Rando - -------------------------- ------------------------ Jean B. Keffeler John J. Rando -----END PRIVACY-ENHANCED MESSAGE-----