Registration No. 333-
NATIONAL RESEARCH
CORPORATION
(Exact name of registrant as specified in its charter)
| Wisconsin | 47-0634000 |
| (State or other jurisdiction | (I.R.S. Employer |
| of incorporation or organization) | Identification No.) |
|
1245 Q Street |
|
| Lincoln, Nebraska | 68508 |
| (Address of principal executive offices) | (Zip Code) |
National Research
Corporation 2001 Equity Incentive Plan
(Full title of the plan)
| Michael D. Hays | |
| President and Chief Executive Officer | Copy to: |
| National Research Corporation | Benjamin F. Garmer, III |
| 1245 Q Street | Russell E. Ryba |
| Lincoln, Nebraska 68508 | Foley & Lardner LLP |
| (402) 475-2525 | 777 East Wisconsin Avenue |
| (Name, address and telephone number, including area | Milwaukee, Wisconsin 53202 |
| code, of agent for service) | (414) 271-2400 |
|
CALCULATION OF REGISTRATION FEE
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|
Title of Securities
to be Registered |
Amount to be
Registered(1) |
Proposed Maximum
Offering Price Per Share(2) |
Proposed Maximum
Aggregate Offering Price(2) |
Amount of
Registration Fee |
| Common Stock, | 600,000 Shares | $16.25 | $9,750,000 | $1,235.33 |
| $.001 par value | ||||
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|
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| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement also covers an indeterminate number of additional shares of Common Stock that may become issuable as a result of stock splits, stock dividends or similar transactions pursuant to the anti-dilution provisions of the 2001 Equity Incentive Plan. |
| (2) | Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933 solely for the purpose of calculating the registration fee based on the average of the high and low prices for National Research Corporation Common Stock as reported on the Nasdaq National Market on November 10, 2004. |
The document or documents containing the information specified in Part I are not required to be filed with the Securities and Exchange Commission (the “Commission”) as part of this Form S-8 Registration Statement.
The following documents filed by National Research Corporation (the “Company”) with the Commission are hereby incorporated herein by reference:
1. The Company’s Annual Report on Form 10-K for the year ended December 31, 2003.
2. The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2004, June 30, 2004 and September 30, 2004.
3. The description of the Company’s Common Stock contained in Item 1 of the Company’s Registration Statement on Form 8-A, dated October 2, 1999, and any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of filing of this Registration Statement and prior to such time as the Company files a post-effective amendment to this Registration Statement 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 in this Registration Statement and to be a part hereof from the date of filing of such documents.
Not applicable.
Not applicable.
Pursuant to the provisions of the Wisconsin Business Corporation Law, directors and officers of the Registrant are entitled to mandatory indemnification from the Registrant against certain liabilities (which may include liabilities under the Securities Act of 1933) and expenses (i) to the extent such officers or directors are successful in the defense of a proceeding; and (ii) in proceedings in which the director or officer is not successful in defense thereof, unless it is determined that the director or officer breached or failed to perform his or her duties to the Registrant and such breach or failure constituted: (a) a willful failure to deal fairly with the Registrant or its shareholders in connection with a matter in which the director or officer had a material conflict of interest; (b) a violation of criminal law unless the director or officer had a reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (c) a transaction from which the director or officer derived an improper personal profit; or (d) willful misconduct. Additionally, under the Wisconsin Business Corporation Law, directors of the Registrant are not subject to personal liability to the Registrant, its shareholders or any person asserting rights on behalf thereof, for certain breaches or failures to perform any duty resulting solely from their status as directors, except in circumstances paralleling those outlined in (a) through (d) above.
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The Registrant’s By-Laws provided for indemnification and advancement of expenses of officers and directors to the fullest extent provided by the Wisconsin Business Corporation Law.
The indemnification provided by the Wisconsin Business Corporation Law and the Registrant’s By-Laws is not exclusive of any other rights to which a director or officer of the Registrant may be entitled.
The Registrant also maintains director and officer liability insurance against certain claims and liabilities which may be made against the Registrant’s former, current or future directors or officers.
Not Applicable.
The following exhibits have been filed (except where otherwise indicated) as part of this Registration Statement:
| Exhibit No . | Exhibit |
| (4.1) | Articles of Incorporation of National Research Corporation, as amended to date [Incorporated by reference to Exhibit 3.1 to National Research Corporation’s Registration Statement on Form S-1 (Registration No. 333-33273)] |
| (4.2) | By-Laws of National Research Corporation, as amended to date [Incorporated by reference to Exhibit 3.2 to National Research Corporation’s Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 0-29466)] |
| (4.3) | National Research Corporation 2001 Equity Incentive Plan [Incorporated by reference to Appendix A to National Research Corporation's Proxy Statement for the 2002 Annual Meeting of Shareholders filed on April 3, 2002 (file No. 0-29466)] |
| (4.4) | Form of Nonqualified Stock Option Agreement (for new associates) used in connection with the 2001 Equity Incentive Plan |
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| Exhibit No . | Exhibit |
| (4.5) | Form of Nonqualified Stock Option Agreement (for officers) used in connection with the 2001 Equity Incentive Plan |
| (4.6) | Form of Restricted Stock Agreement (one year vesting) used in connection with the 2001 Equity Incentive Plan |
| (4.7) | Form of Restricted Stock Agreement (five year vesting) used in connection with the 2001 Equity Incentive Plan |
| (5) | Opinion of Foley & Lardner LLP |
| (23.1) | Consent of KPMG LLP |
| (23.2) | Consent of Foley & Lardner LLP (contained in Exhibit (5) hereto) |
| (24) | Power of Attorney (included on the signature page hereto) |
(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, as amended; |
| (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, represents 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 (a)(1)(i) and (a)(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 Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, 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.
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(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, 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, as amended, 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.
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Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all 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 Lincoln, State of Nebraska, on the 15 th day of November, 2004.
| NATIONAL RESEARCH CORPORATION | |
|
|
By: /s/ Michael D. Hays |
| Michael D. Hays | |
| President and Chief Executive Officer |
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 dates indicated. Each person whose signature appears below constitutes and appoints Michael D. Hays and Patrick E. Beans, and each of them individually, his attorneys-in-fact and agents, 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 the 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 and necessary to be done in connection therewith, 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 their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
| Signature | Title | Date |
|---|---|---|
|
/s/ Michael D. Hays |
President, Chief Executive Officer and Director | |
| Michael D. Hays | (Principal Executive Officer) | November 15, 2004 |
|
/s/ Patrick E. Beans |
Vice President, Treasurer, Secretary, Chief | |
| Patrick E. Beans | Financial Officer and Director (Principal Financial | November 15, 2004 |
| and Accounting Officer) | ||
|
/s/ JoAnn M. Martin |
Director | November 15, 2004 |
| JoAnn M. Martin | ||
|
/s/ John N. Nunnelly |
Director | November 15, 2004 |
| John N. Nunnelly | ||
|
/s/ Paul C. Schorr III |
Director | November 15, 2004 |
| Paul C. Schorr III |
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|
Exhibit
Number |
Exhibit Description |
| (4.1) | Articles of Incorporation of National Research Corporation, as amended to date [Incorporated by reference to Exhibit 3.1 to National Research Corporation’s Registration Statement on Form S-1 (Registration No. 333-33273)] |
| (4.2) | By-Laws of National Research Corporation, as amended to date [Incorporated by reference to Exhibit 3.2 to National Research Corporation’s Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 0-29466)] |
| (4.3) | National Research Corporation 2001 Equity Incentive Plan [Incorporated by reference to Appendix A to National Research Corporation's Proxy Statement for the 2002 Annual Meeting of Shareholders filed on April 3, 2002 (file No. 0-29466)] |
| (4.4) | Form of Nonqualified Stock Option Agreement (for new associates) used in connection with the 2001 Equity Incentive Plan |
| (4.5) | Form of Nonqualified Stock Option Agreement (for officers) used in connection with the 2001 Equity Incentive Plan |
| (4.6) | Form of Restricted Stock Agreement (one year vesting) used in connection with the 2001 Equity Incentive Plan |
| (4.7) | Form of Restricted Stock Agreement (five year vesting) used in connection with the 2001 Equity Incentive Plan |
| (5) | Opinion of Foley & Lardner LLP |
| (23.1) | Consent of KPMG LLP |
| (23.2) | Consent of Foley & Lardner LLP (contained in Exhibit (5) hereto) |
| (24) | Power of Attorney (included on the signature page hereto) |
THIS AGREEMENT, made and entered into as of this _ day of ______, ___ by and between NATIONAL RESEARCH CORPORATION, a Wisconsin corporation (the “Company”), and ________________ (the “Optionee”).
W I T N E S S E T H :
WHEREAS, the Company has adopted the National Research Corporation 2001 Equity Incentive Plan (the “Plan”) to permit options to purchase shares of the Company’s common stock, $.001 par value (“Common Stock”), to be granted to employees of the Company and its Affiliates.
WHEREAS, the Optionee is employed by the Company and the Company desires him or her to secure or increase his or her stock ownership in the Company in order to increase his or her incentive and personal interest in the welfare of the Company; and
WHEREAS, the option granted under this Agreement is not intended to constitute an incentive stock option (“Nonqualified Stock Option”), as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows:
1. Grant .
(a) Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants to the Optionee a Nonqualified Stock Option to purchase from the Company the number of shares of Common Stock (hereinafter referred to as the “Optioned Shares,” and the option to purchase the Optioned Shares referred to as the “Option”), in accordance with the following schedule:
| Date of Grant ("Grant Date") |
Number of Shares to be Granted
("Earned Option") |
|
_____ __, 200_ |
____ Shares |
| _____ __, 200_ | ____ Shares |
| _____ __, 200_ | ____ Shares |
If the Optionee is not an employee of the Company or an Affiliate on the applicable Grant Date, the grant of an Option pursuant to this paragraph 1(a) on such Grant Date shall immediately terminate and be of no further force or effect.
2. Option Price . The price to be paid for the Optioned Shares shall be 100% of the fair market value of such stock on the Grant Date (the “Option Price”), as determined by the Board of Directors of the Company (The “Board”) or Committee.
3. Term . The Option shall expire five years from the date of this agreement and shall not be exercisable thereafter.
4. Time of Exercise . Except as otherwise provided herein, an Earned Option shall vest and become exercisable according to the following schedule:
| Years From Grant Date |
Cumulative Percentage of Earned Option
Which May Be Exercised ("Vested Amount") |
|
After 1 year |
50% |
| After 2 years | 100% |
5. Manner of Exercise and Payment . The Optionee may, subject to the limitations of this Agreement, exercise all or any portion of the Vested Amount by providing written notice to the Company of the Optionee’s intent to exercise the Option, delivered to the Secretary of the Company at its principal office, specifying the number of shares with respect to which the Option is being exercised, accompanied by payment for such shares: (a) in cash or its equivalent; (b) by tendering previously acquired shares of Common Stock valued at their fair market value at the time of exercise, as determined by the Board or Committee; (c) by any combination of (a) and (b); or (d) by delivery (including by facsimile) to the Company or its designated agent of an executed irrevocable option exercise form together with irrevocable instructions to a broker-dealer to sell or margin a sufficient portion of the shares and deliver the sale or margin loan proceeds directly to the Company to pay for the Option Price.
6. Termination of Employment .
(a) If the employment of Optionee terminates by reason of death or disability, as determined by the Board or Committee, then, notwithstanding the provisions of paragraph 4, an Earned Option shall be 100% vested on the date of termination of the Optionee’s employment, and the Optionee (or his or her personal representative) may exercise the Earned Option or any portion thereof during the period of twelve (12) months after termination of the Optionee’s employment; provided , however, that neither the Option nor any portion thereof shall be exercisable after it has expired pursuant to paragraph 3 hereof.
(b) If the employment of Optionee is terminated for any reason other than death or disability, an Earned Option, to the extent not then vested, shall immediately terminate and the Optionee (or his or her personal representative) may exercise the Earned Option or any portion thereof to the extent vested pursuant to paragraph 4 hereof during the period of 90 days after the date of such termination of employment and not thereafter; provided, however, that neither the Earned Option nor any portion thereof shall be exercisable after it has expired pursuant to paragraph 3 hereof.
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7. Nontransferability of Option . Except as may be otherwise provided by the Board or Committee, the Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution and is exercisable during the Optionee’s lifetime only by the Optionee.
8. Tax Withholding .
(a) It shall be a condition of the obligation of the Company to issue or transfer shares of Common Stock upon exercise of the Option, and to issue or transfer any other shares of Common Stock to the Optionee pursuant to the Plan or any other agreements entered into between the Optionee and the Company thereunder, that the Optionee shall pay to the Company upon its demand, or agree that the Company may withhold from compensation due the Optionee, such amount as may be requested by the Company for the purpose of satisfying its liability to withhold federal, state or local income or other taxes incurred by reason of the exercise of the Option. If the Optionee fails to comply with this Section 8, the Company may refuse to issue or transfer shares of Common Stock upon exercise of the Option.
(b) The Optionee may elect to have the Company withhold that number of Optioned Shares otherwise issuable to the Optionee upon exercise of the Option or to deliver to the Company a number of shares of Common Stock, in each case, having a fair market value at the time of exercise, as determined by the Board or Committee, equal to the minimum amount required to be withheld as a result of such exercise. The election must be made in writing and delivered to the Company on or prior to the date of exercise.
9. Capital Adjustments Affecting Stock . In the event of a capital adjustment resulting from a stock dividend (other than a stock dividend in lieu of an ordinary cash dividend), return of capital dividend, stock split, spin-off, reorganization, recapitalization, merger, consolidation, combination or exchange of shares or the like, the Optioned Shares shall be adjusted in a manner consistent with such capital adjustment; provided, however, that no such adjustment shall require the Company to sell any fractional shares and the adjustment shall be limited accordingly. The price of any shares under the Option shall be adjusted such that there will be no change in the aggregate purchase price payable upon exercise of the Option. The determination of the Board or Committee as to any adjustment shall be final.
10. Restriction on Transfer of Common Stock . The shares to be acquired upon exercise of the Option may not be sold or offered for sale except (i) pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”), and any applicable state securities laws, (ii) in a transaction satisfying the requirements of Rule 144 promulgated under the Act or (iii) in a transaction which, in the opinion of counsel for the Company, is exempt from the registration provisions of the Act and applicable state securities laws.
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11. Rights as Shareholder . The Optionee shall not be deemed for any purposes to be a shareholder of the Company with respect to any of the Optioned Shares except to the extent that the Option shall have been exercised, such shares shall have been fully paid, and a stock certificate issued therefor.
12. Power of Company Not Affected . The existence of the Option shall not affect in any way the right or power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the rights thereof, or dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. Nothing in this Agreement shall confer upon the Optionee any right to continue in the employment of the Company or any Affiliate.
13. Interpretation by Board or Committee . As a condition of the granting of the Option, the Optionee agrees, for the Optionee and his or her personal representatives, that this Agreement may be interpreted by the Board or Committee and that any interpretation by the Board or Committee of the terms of this Agreement and any determination made by the Board or Committee pursuant to this Agreement shall be final, binding and conclusive.
14. Amendment or Modification . No term or provision of this Agreement may be amended, modified or supplemented orally, but only by an instrument in writing signed by the party against which or whom the enforcement of the amendment, modification or supplement is sought.
15. The Plan . The Option is granted under and pursuant to the Plan, which shall govern all rights, interests, obligations and understandings of both the Company and the Optionee. All capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Plan.
16. Effective Date . Each Option granted under this Agreement shall be effective on its respective Grant Date, but contingent upon completion of the Company’s initial public offering of Common Stock.
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17. Governing Law . This Agreement shall be governed by the internal laws of the State of Nebraska as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies.
18. Requirements of Law . The issuance of shares of Common Stock upon the exercise of the Option shall be subject to all applicable laws, rules and regulations and to such approvals by any governmental agencies or national securities exchanges or markets as may be required.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Optionee has executed this Agreement as of the day and year first above written.
| NATIONAL RESEARCH CORPORATION | |
|
|
By:_______________________________________ |
| Title: President | |
|
|
OPTIONEE: |
|
|
_________________________________________ |
| <<FirstName>><<LastName>> |
THIS AGREEMENT, made and entered into as of this ____ day of _________, 20__ (the “Grant Date”), by and between NATIONAL RESEARCH CORPORATION, a Wisconsin corporation (the “Company”), and _____________ (the “Optionee”).
WHEREAS, the Company has adopted the National Research Corporation 2001 Equity Incentive Plan (the “Plan”) to permit options to purchase shares of the Company’s common stock, $.001 par value (“Common Stock”), to be granted to employees of the Company and its Affiliates.
WHEREAS, the Optionee is employed by the Company in a key capacity and the Company desires him or her to remain in such employ and to secure or increase his or her stock ownership in the Company in order to increase his or her incentive and personal interest in the welfare of the Company; and
WHEREAS, the option granted under this Agreement is not intended to constitute an incentive stock option (“Nonqualified Stock Option”), as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows:
1. Grant . Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants to the Optionee a Nonqualified Stock Option to purchase from the Company all, or any part, of the aggregate number of shares of Common Stock set forth on the signature page hereof (hereinafter referred to as the “Optioned Shares,” and the option to purchase the Optioned Shares referred to as the “Option”).
2. Option Price . The price to be paid for the Optioned Shares shall be the closing price per share of Common Stock on the Grant Date as reported on the Nasdaq National Market, which has been determined by the Committee to be not less than 100% of the fair market value of such stock on the Grant Date.
3. Term . Subject to the provisions of paragraph 6, the Option shall expire on the date ten years after the Grant Date and shall not be exercisable thereafter.
4. Time of Exercise . Except as otherwise provided herein, the Option shall fully vest and become fully exercisable on the date five years after the Grant Date.
5. Manner of Exercise and Payment . After the Option has vested, the Optionee may, subject to the limitations of this Agreement, exercise all or any portion of the Option by providing written notice to the Company of the Optionee’s intent to exercise the Option, delivered to the Secretary of the Company at its principal office, specifying the number of shares with respect to which the Option is being exercised, accompanied by payment for such shares: (a) in cash or its equivalent; (b) by tendering previously acquired shares of Common Stock that the Optionee has held for at least six months or has purchased on the market (valued at their fair market value on the exercise date as determined under procedures adopted by the Committee); (c) by any combination of (a) and (b); or (d) by delivery (including by facsimile) to the Company or its designated agent of an executed irrevocable option exercise form together with irrevocable instructions to a broker-dealer to sell or margin a sufficient portion of the shares and deliver the sale or margin loan proceeds directly to the Company to pay for the Option price.
6. Termination of Employment .
(a) If the employment of Optionee terminates by reason of death or disability, as determined by the Committee, then, notwithstanding the provisions of paragraph 4, the Option shall be 100% vested on the date of termination of the Optionee’s employment, and the Optionee (or his or her personal representative) may exercise the Option or any portion thereof during the period of twelve (12) months after termination of the Optionee’s employment; provided, however, that the Option shall not be exercisable after it has expired pursuant to paragraph 3 hereof.
(b) If the employment of Optionee is terminated for any reason other than death or disability, the Option, if not then vested, shall immediately terminate. If the Options has vested pursuant to paragraph 4 hereof at the time of Optionee’s termination, then Optionee (or his or her personal representative) may exercise the Option during the period of (i) in the case of termination for any reason other than death, disability or retirement, 90 days after the date of such termination of employment and not thereafter, and (ii) in the case of termination by reason of retirement, as determined by the Committee, twelve (12) months after the date of such termination of employment and not thereafter; provided, however, that the Option shall not be exercisable after it has expired pursuant to paragraph 3 hereof.
7. Nontransferability of Option . Except as may be otherwise provided by the Committee, the Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution and is exercisable during the Optionee’s lifetime only by the Optionee.
8. Tax Withholding .
(a) It shall be a condition of the obligation of the Company to issue or transfer shares of Common Stock upon exercise of the Option, and to issue or transfer any other shares of Common Stock to the Optionee pursuant to the Plan or any other agreements entered into between the Optionee and the Company thereunder, that the Optionee shall pay to the Company upon its demand, or agree that the Company may withhold from compensation due the Optionee, such amount as may be requested by the Company for the purpose of satisfying its liability to withhold federal, state or local income or other taxes incurred by reason of the exercise of the Option. If the Optionee fails to comply with this Section 8, the Company may refuse to issue or transfer shares of Common Stock upon exercise of the Option.
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(b) The Optionee may elect to have the Company withhold that number of Optioned Shares otherwise issuable to the Optionee upon exercise of the Option or to deliver to the Company a number of shares of Common Stock that the Optionee has held for at least six months or has purchased on the market, in each case, having a fair market value on the exercise date as determined under procedures adopted by the Committee, equal to the minimum amount required to be withheld as a result of such exercise. The election must be made in writing and delivered to the Company on or prior to the date of exercise.
9. Capital Adjustments Affecting Stock . In the event of a capital adjustment resulting from a stock dividend (other than a stock dividend in lieu of an ordinary cash dividend), return of capital dividend, stock split, spin-off, reorganization, recapitalization, merger, consolidation, combination or exchange of shares or the like, the Optioned Shares shall be adjusted in a manner consistent with such capital adjustment; provided, however, that no such adjustment shall require the Company to sell any fractional shares and the adjustment shall be limited accordingly. The price of any shares under the Option shall be adjusted such that there will be no change in the aggregate purchase price payable upon exercise of the Option. The determination of the Committee as to any adjustment shall be final.
10. Restriction on Transfer of Common Stock . The shares to be acquired upon exercise of the Option may not be sold or offered for sale except (a) pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”), and any applicable state securities laws, (b) in a transaction satisfying the requirements of Rule 144 promulgated under the Act or (c) in a transaction which, in the opinion of counsel for the Company, is exempt from the registration provisions of the Act and applicable state securities laws.
11. Rights as Shareholder . The Optionee shall not be deemed for any purposes to be a shareholder of the Company with respect to any of the Optioned Shares except to the extent that the Option shall have been exercised, such shares shall have been fully paid, and a stock certificate issued therefor.
12. Power of Company Not Affected . The existence of the Option shall not affect in any way the right or power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the rights thereof, or dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. Nothing in this Agreement shall confer upon the Optionee any right to continue in the employment of the Company or any Affiliate.
13. Interpretation by Committee . As a condition of the granting of the Option, the Optionee agrees, for the Optionee and his or her personal representatives, that this Agreement shall be interpreted by the Committee and that any interpretation by said Committee of the terms of this Agreement and any determination made by the Committee pursuant to this Agreement shall be final, binding and conclusive.
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14. Amendment or Modification . No term or provision of this Agreement may be amended, modified or supplemented orally, but only by an instrument in writing signed by the party against which or whom the enforcement of the amendment, modification or supplement is sought.
15. The Plan . The Option is granted under and pursuant to the Plan, which shall govern all rights, interests, obligations and understandings of both the Company and the Optionee. All capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Plan.
16. Effective Date . The Option granted under this Agreement shall be effective on its Grant Date.
17. Governing Law . This Agreement shall be governed by the internal laws of the State of Nebraska as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies.
18. Requirements of Law . The issuance of shares of Common Stock upon the exercise of the Option shall be subject to all applicable laws, rules and regulations and to such approvals by any governmental agencies or national securities exchanges or markets as may be required.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Optionee has executed this Agreement as of the day and year first above written.
| NATIONAL RESEARCH CORPORATION | |
|
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By:_______________________________________ |
| Title: President | |
|
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OPTIONEE: |
|
|
_________________________________________ |
|
[Name]
Number of Optioned Shares: ____ |
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THIS AGREEMENT, made and entered into as of this ____ day of _________, 20__ (the “Grant Date”), by and between NATIONAL RESEARCH CORPORATION, a Wisconsin corporation (the “Company”), and _____________ (the “Participant”).
WHEREAS, the Company has adopted the National Research Corporation 2001 Equity Incentive Plan (the “Plan”) to permit awards of restricted shares of the Company’s common stock, $.001 par value (“Common Stock”), to be granted to employees of the Company and its Affiliates.
WHEREAS, the Participant is employed by the Company in a key capacity and the Company desires him or her to remain in such employ and to secure or increase his or her stock ownership in the Company in order to increase his or her incentive and personal interest in the welfare of the Company.
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows:
1. Grant . Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants to the Participant the aggregate number of restricted shares of Common Stock set forth on the signature page hereof (hereinafter referred to as the “Restricted Shares”).
2. Restrictions on Transfer . The Restricted Shares may not be sold, assigned, transferred, pledged or otherwise encumbered until the expiration of the period beginning on the Grant Date and ending on the date one year after the Grant Date (the “Restricted Period”) or, if earlier, until the Participant is vested in the Restricted Shares pursuant to paragraph 3(a).
3. Termination of Employment .
(a) If the employment of Participant terminates by reason of death or disability, as determined by the Committee prior to the end of the Restricted Period, then, notwithstanding the provisions of subparagraph (b), the Participant shall be 100% vested in the Restricted Shares on the date of termination of the Participant’s employment.
(b) If the employment of Participant is terminated for any reason other than death or disability prior to the end of the Restricted Period, then the Restricted Shares shall immediately be forfeited by Participant to the Company.
4. Rights as Shareholder . The Participant shall be entitled to receive any dividends paid with respect to the Restricted Shares that becomes payable during the Restricted Period; provided, however, that no dividends shall be payable to or for the benefit of the Participant for Restricted Shares with respect to record dates occurring prior to the Grant Date, or with respect to record dates occurring on or after the date, if any, on which the Participant has forfeited those Restricted Shares. The Participant shall be entitled to vote the Restricted Shares during the Restricted Period; provided, however, that the Participant shall not be entitled to vote the Restricted Shares with respect to record dates for such voting rights arising prior to the Grant Date, or with respect to record dates occurring on or after the date, if any, on which the Participant has forfeited those Restricted Shares.
5. Deposit of Restricted Shares . Each certificate issued in respect of Restricted Shares granted under this Agreement shall be registered in the name of the Participant and shall be deposited with a bank or broker-dealer designated by the Committee. The grant of Restricted Shares is conditioned upon the Participant endorsing in blank a stock power for the Restricted Shares.
6. Interpretation by Committee . As a condition of the granting of the Restricted Shares the Participant agrees, for the Participant and his or her personal representatives, that this Agreement shall be interpreted by the Committee and that any interpretation by said Committee of the terms of this Agreement and any determination made by the Committee pursuant to this Agreement shall be final, binding and conclusive.
7. Amendment or Modification . No term or provision of this Agreement may be amended, modified or supplemented orally, but only by an instrument in writing signed by the party against which or whom the enforcement of the amendment, modification or supplement is sought.
8. The Plan . The Restricted Shares are granted under and pursuant to the Plan, which shall govern all rights, interests, obligations and understandings of both the Company and the Participant. All capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Plan.
9. Effective Date . The award of Restricted Shares granted under this Agreement shall be effective on its Grant Date.
10. Governing Law . This Agreement shall be governed by the internal laws of the State of Nebraska as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies.
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11. Requirements of Law . The issuance of Restricted Shares shall be subject to all applicable laws, rules and regulations and to such approvals by any governmental agencies or national securities exchanges or markets as may be required.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Participant has executed this Agreement as of the day and year first above written.
| NATIONAL RESEARCH CORPORATION | |
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By:_______________________________________ |
| Title: President | |
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PARTICIPANT: |
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_________________________________________ |
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[Name]
Number of Restricted Shares: ____ |
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THIS AGREEMENT, made and entered into as of this ____ day of _________, 20__ (the “Grant Date”), by and between NATIONAL RESEARCH CORPORATION, a Wisconsin corporation (the “Company”), and _____________ (the “Participant”).
WHEREAS, the Company has adopted the National Research Corporation 2001 Equity Incentive Plan (the “Plan”) to permit awards of restricted shares of the Company’s common stock, $.001 par value (“Common Stock”), to be granted to employees of the Company and its Affiliates.
WHEREAS, the Participant is employed by the Company in a key capacity and the Company desires him or her to remain in such employ and to secure or increase his or her stock ownership in the Company in order to increase his or her incentive and personal interest in the welfare of the Company.
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows:
1. Grant . Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants to the Participant the aggregate number of restricted shares of Common Stock set forth on the signature page hereof (hereinafter referred to as the “Restricted Shares”).
2. Restrictions on Transfer . The Restricted Shares may not be sold, assigned, transferred, pledged or otherwise encumbered until the expiration of the period beginning on the Grant Date and ending on the date five years after the Grant Date (the “Restricted Period”) or, if earlier, until the Participant is vested in the Restricted Shares pursuant to paragraph 3(a).
3. Termination of Employment .
(a) If the employment of Participant terminates by reason of death or disability, as determined by the Committee prior to the end of the Restricted Period, then, notwithstanding the provisions of subparagraph (b), the Participant shall be 100% vested in the Restricted Shares on the date of termination of the Participant’s employment.
(b) If the employment of Participant is terminated for any reason other than death or disability prior to the end of the Restricted Period, then the Restricted Shares shall immediately be forfeited by Participant to the Company.
4. Rights as Shareholder . The Participant shall be entitled to receive any dividends paid with respect to the Restricted Shares that becomes payable during the Restricted Period; provided, however, that no dividends shall be payable to or for the benefit of the Participant for Restricted Shares with respect to record dates occurring prior to the Grant Date, or with respect to record dates occurring on or after the date, if any, on which the Participant has forfeited those Restricted Shares. The Participant shall be entitled to vote the Restricted Shares during the Restricted Period; provided, however, that the Participant shall not be entitled to vote the Restricted Shares with respect to record dates for such voting rights arising prior to the Grant Date, or with respect to record dates occurring on or after the date, if any, on which the Participant has forfeited those Restricted Shares.
5. Deposit of Restricted Shares . Each certificate issued in respect of Restricted Shares granted under this Agreement shall be registered in the name of the Participant and shall be deposited with a bank or broker-dealer designated by the Committee. The grant of Restricted Shares is conditioned upon the Participant endorsing in blank a stock power for the Restricted Shares.
6. Interpretation by Committee . As a condition of the granting of the Restricted Shares the Participant agrees, for the Participant and his or her personal representatives, that this Agreement shall be interpreted by the Committee and that any interpretation by said Committee of the terms of this Agreement and any determination made by the Committee pursuant to this Agreement shall be final, binding and conclusive.
7. Amendment or Modification . No term or provision of this Agreement may be amended, modified or supplemented orally, but only by an instrument in writing signed by the party against which or whom the enforcement of the amendment, modification or supplement is sought.
8. The Plan . The Restricted Shares are granted under and pursuant to the Plan, which shall govern all rights, interests, obligations and understandings of both the Company and the Participant. All capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Plan.
9. Effective Date . The award of Restricted Shares granted under this Agreement shall be effective on its Grant Date.
10. Governing Law . This Agreement shall be governed by the internal laws of the State of Nebraska as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies.
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11. Requirements of Law . The issuance of Restricted Shares shall be subject to all applicable laws, rules and regulations and to such approvals by any governmental agencies or national securities exchanges or markets as may be required.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Participant has executed this Agreement as of the day and year first above written.
| NATIONAL RESEARCH CORPORATION | |
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By:_______________________________________ |
| Title: President | |
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PARTICIPANT: |
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_________________________________________ |
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[Name]
Number of Restricted Shares: ____ |
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FOLEY & LARDNER LLP
ATTORNEYS AT LAW |
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777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202-5306 414.271.2400 TEL 414.297.4900 FAX www.foley.com |
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| Novebmer 15, 2004 |
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CLIENT/MATTER NUMBER
044741-0103 |
National Research
Corporation
1245 Q Street
Lincoln, NE 68508
Ladies and Gentlemen:
We have acted as counsel for National Research Corporation, a Wisconsin corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to 600,000 shares of the Company’s common stock, $.001 par value (the “Common Stock”), which may be issued and sold pursuant to the National Research Corporation 2001 Equity Incentive Plan (the “Plan”).
In connection with our representation, we have examined: (a) the Plan; (b) the Registration Statement, including the exhibits (including those incorporated by reference) constituting a part or the Registration Statement; (c) the Articles of Incorporation and the By-laws of the Company, as amended to date; (d) resolutions of the Company’s Board of Directors relating to the Plan and the issuance of Common Stock thereunder; and (e) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion.
In our examination of the above-referenced documents, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as copies.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the laws of the State of Wisconsin.
2. The shares of Common Stock covered by the Registration Statement when issued by the Company in the manner and for the consideration contemplated by the Plan, will be validly issued, fully paid and nonassessable, except with respect to wage claims of, or other debts owing to, employees of the Company for services performed, but not exceeding six months’ service in any one case, as provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law.
We consent to the use of this opinion as an exhibit to the Registration Statement and to references to our firm therein. In giving our consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
| Very truly yours, | |
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/s/ FOLEY & LARDNER |
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FOLEY & LARDNER LLP |
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BRUSSELS
CHICAGO DETROIT JACKSONVILLE |
LOS ANGELES
MADISON MILWAUKEE NEW YORK |
ORLANDO
SACRAMENTO SAN DIEGO SAN DIEGO/DEL MAR |
SAN FRANCISCO
SILICON VALLEY TALLAHASSEE TAMPA |
TOKYO
WASHINGTON, D.C. WEST PALM BEACH |
Exhibit 23.1
The Board of
Directors
National Research Corporation:
We consent to the use of our reports dated February 6, 2004, with respect to the consolidated balance sheets of National Research Corporation and subsidiary as of December 31, 2003 and 2002, and the related consolidated statements of income, shareholders’ equity and comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2003, and the related financial statement schedule, incorporated herein by reference.
/s/ KPMG LLP
Lincoln, Nebraska
November
10, 2004