As filed with the Securities and Exchange Commission on May 12, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Colorado 52-2077581
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(State or Other Jurisdiction of (IRS Employer Identification Number)
Incorporation or Organization)
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D. Elizabeth Wills, Esq.
Rothgerber Johnson & Lyons LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
(303) 623-9000
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
(1)(2) (1)(2)
Common Stock 189,199 $2.87 $543,577 $143.50
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(1) Estimated solely for the purpose of calculating the registration fees.
(2) Estimated pursuant to Rule 457 (h) under the Securities Act of 1933,
as amended (the "Securities Act"), on the basis of the weighted
average price at which the options may be exercised for shares of
common stock, no par value per share, of National Information
Consortium, Inc. ("Company Common Stock").
Pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an indeterminate number of interests to be offered or sold pursuant to the employee benefit plan described herein.
TABLE OF CONTENTS
Page
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS . . . . . . . . . .1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference. . . . . . . . . .1
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Item 4. Description of Securities. . . . . . . . . . . . . . . . .1
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Item 5. Interests of Named Experts and Counsel . . . . . . . . . .1
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Item 6. Indemnification of Directors and Officers. . . . . . . . .2
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Item 7. Exemption From Registration Claimed. . . . . . . . . . . .2
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Item 8. Exhibits . . . . . . . . . . . . . . . . . . . . . . . . .2
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Item 9. Undertakings . . . . . . . . . . . . . . . . . . . . . . .2
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SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
EXHIBIT INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 have been or will be sent or given to employees as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information are incorporated in this Registration Statement by reference:
(a) The Form S-1 Registration Statement of National Information Consortium, Inc. (the "Company"), Registration No. 333-77939 ("Form S-1"), including the Description of Capital Stock section on page 62.
(b) The Company's Annual Report on Form 10-K for the year ended December 31, 1999, File No. 000-26621.
(c) The Company's Current Report on Form 8-K, filed on January 28, 2000.
(d) The Company's Current Report on Form 8-K, filed on March 1, 2000.
(e) The Company's Current Report on Form 8-K, filed on April 10, 2000.
All documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing such documents. Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Company Common Stock registered pursuant to this Form S-8 Registration Statement will be passed upon for the Company by the law firm of Rothgerber Johnson & Lyons LLP, One Tabor Center, Suite 3000, 1200 17th Street, Denver, Colorado 80202, which has served as special counsel to the Company in the preparation of the Form S-8 Registration Statement. As of the date of this Registration Statement, no member of this law firm owns a substantial amount of Company Stock or is employed on a contingent basis by the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Articles of Incorporation of the Company indemnifies directors from personal liability to the greatest extent possible as is now, or in the future, provided by law. Article VIII of the Bylaws of the Company provides for indemnification of directors, officers, employees and agents to the greatest extent possible.
Sections 7-109-101 to 110 of the Colorado Business Corporation Act permit a corporation to indemnify a person against expenses and liability incurred in a proceeding to which that person is made a party because of his or her having been a director of the corporation if (i) that person conducted himself or herself in good faith and in a manner reasonably believed to be in the corporation's best interests or not opposed to the corporation's best interests; and (ii) in the case of a criminal proceeding, that person had no reasonable cause to believe his or her conduct was unlawful. The corporation may indemnify and advance expenses to an officer, employee, fiduciary, or agent to the same extent as to a director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
The following exhibits are attached to this registration statement or are incorporated by reference herein:
4.1 1999 Stock Option Plan of SDR Technologies, Inc.
5.1 Opinion of Rothgerber Johnson & Lyons LLP as to legality
23.1 Consent of Independent Accountants
23.2 Consent of Rothgerber Johnson & Lyons (included in Exhibit 5.1 hereto)
24 Power of Attorney (included on signature page hereof)
ITEM 9. UNDERTAKINGS
The Company 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company'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 Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company 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, hereunto duly authorized, in the City of Overland Park and the State of Kansas, on this 8th day of May, 2000.
NATIONAL INFORMATION CONSORTIUM
By: /s/ James B. Dodd ----------------------------------- James B. Dodd, 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.
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Herbert H. Davis III, Esq. and D. Elizabeth Wills, Esq., and each of them, as attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to said attorney-in-fact, 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, or any one of them, or their or his substitute or substitutes, may lawfully do or causes to be done by virtue hereof.
Signature Title Date --------- ----- ---- /s/ James B. Dodd President, Chief Executive May 8, 2000 |
----------------------- Officer and Director James B. Dodd
/s/ Kevin C. Childress Chief Financial May 8, 2000
----------------------- Officer (Principal
Kevin C. Childress Financial and
Accounting Officer)
/s/ John L. Bunce, Jr. Director May 8, 2000
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John L. Bunce, Jr.
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Director May _, 2000
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Daniel J. Evans
Chairman of Board May _, 2000
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----------------------- and Director
Jeffrey S. Fraser
/s/ Ross C. Hartley Director May 8, 2000 ----------------------- Ross C. Hartley /s/ Patrick J. Healy Director May 8, 2000 ----------------------- Patrick J. Healy |
EXHIBIT INDEX
Exhibit No. Description Page No.
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4.1 1999 Stock Option Plan of SDR Technologies, Inc.
5.1 Opinion of Rothgerber Johnson & Lyons LLP as to legality
23.1 Consent of Independent Accountants
23.2 Consent of Rothgerber Johnson & Lyons LLP (included
within Exhibit 5.1)
24 Power of Attorney (included on signature page hereof)
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EXHIBIT 4.1
1999 STOCK OPTION PLAN
OF
SDR TECHNOLOGIES, INC.,
A CALIFORNIA CORPORATION
1. PURPOSE.
The purpose of this Plan is to strengthen SDR Technologies, Inc. (the "Company"), by providing an additional means to retain, attract, and institute competent management personnel and by providing to participating directors, officers and other key employees as well as outside consultants added incentive for high levels of performance and for unusual efforts to increase the earnings of the Company. The Plan seeks to accomplish these purposes and results by providing a means whereby such individuals, officers and other key employees may purchase shares of the capital stock of the Company pursuant to options.
2. ADMINISTRATION.
This Plan shall be administered by a committee (the "Committee") consisting of members selected by, and serving at the pleasure of, the Board of Directors of the Company (the "Board"). Any action of the Committee with respect to the administration of the Plan shall be taken by a majority vote, or by the written consent of a majority, of its members.
Subject to the express provisions of the Plan, the Committee shall have the authority to construe and interpret the Plan, and to define the terms used in it, to prescribe, amend, and rescind rules and regulations relating to the administration of the Plan, to determine the duration and purposes of leaves of absence which may be granted to participants without constituting a termination of their employment for the purposes of the Plan, and to make all other determinations necessary or advisable for the administration of the Plan. The determinations of the Committee on these matters shall be conclusive. Subject to the express provisions of the Plan, the Committee shall determine from the eligible class the individuals who shall receive options, and the terms and provisions of the options (which need not be identical); provided, however, that notwithstanding any other provisions in this Plan, all grants of options shall be determined by the Board, or by the Committee, if the Board so authorizes.
3. PARTICIPATION.
Officers and other key employees of the Company or of any subsidiary corporation as well as outside consultants shall be eligible for selection to participate in the Plan. Directors, whether or not officers or employees of the Company or any subsidiary corporation, are eligible to participate in the Plan. An individual who has been granted an option may, if otherwise eligible, be granted an additional option or options of the Board shall so determine.
4. STOCK SUBJECT TO THE PLAN AND OPTIONS.
Subject to adjustments as provided in Section 11 hereof, the stock to
be offered under the Plan shall be shares of the Company's authorized but
unissued Common Stock (hereinafter called "stock") and the aggregate amount
of stock to be delivered upon the exercise of all options granted under the
Plan shall not exceed 700,000 shares, subject to the adjustment as set
forth in Section 11 of this Plan. Subject to the general limitations
contained in this Plan and the consent of the option holder as provided in
Section 12, (a) the Board may make any adjustment in (i) the exercise price of,
(ii) the number of shares subject to, or (iii) the term of, an option by
(b) cancellation of an outstanding option and a subsequent regranting of an
option, whether by amendment, or substitution, and (c) such new option may
provide for (i) an exercise price which is higher or lower than the prior
option, (iii) a greater or lesser number of shares subject to the option,
or (iii) a longer or shorter term than the prior option. All shares
received pursuant to the exercise of the option granted hereby will be
subject to the terms and conditions of a Stock Purchase Agreement between
the Company and all the shareholders unless the Board or the committee
determines in their sole discretion that certain shares of certain option
holders will not be subject to such a Stock Purchase Agreement.
5. OPTION PRICE.
The purchase price of stock covered by each option shall be determined by the Committee. The purchase price of any shares purchased shall be paid in full in cash or by check at the time of each purchase.
6. OPTION PERIOD.
Each option and all rights or obligations thereunder shall expire on such date as the Committee or the Board shall determine, but not later than the tenth anniversary of the date the option became fully vested, and shall be subject to earlier termination a hereinafter provided.
7. EXERCISE OF OPTIONS; CONTINUATION OF EMPLOYMENT.
Each person who is an employee to whom an option is granted must agree, at the request of the Company, to remain in the continuous employ of the Company or a subsidiary or parent corporation following the grant of an option for a period of not less than one year. Nothing contained in the Plan (or in any option granted pursuant to the Plan) shall confer upon any employee any right to continue in the employ of the Company or of any subsidiary or parent corporation or constitute any contract or agreement of employment or interfere in any way with the right of the Company or any subsidiary or parent corporation to change in any way (including increases or decreases in) the person's compensation from the rate in existence at the time of the granting of an option or to terminate the person's employment, but nothing contained herein or in any option agreement shall affect any contractual rights of an employee.
Each option shall become exercisable and the total number of shares subject to it shall be purchasable, in such installments, which need not to be equal, as the Committee shall determine; provided, however, that if an option holder shall not in any given installment period purchase all of the shares that the holder is entitled to purchase in that period, the holder's right to purchase any shares not purchased in that period shall continue until the expiration or sooner termination of the holder's option. No option or installment shall be exercisable except in respect of whole shares, and fractional share interests shall be disregarded except that, if an installment includes fractional interests as a result of adjustments pursuant to Section 11 of the Plan, they may be accumulated in accordance with the preceding sentence. No less than 10 shares may be purchased at one time unless the number purchased is at the time the total number available for purchase under the option.
8. NONTRANSFERABILITY OF OPTIONS.
An option granted under the Plan shall, by its terms, be nontransferable by the option holder other than by will or the law of descent and distribution, and shall be exercisable during his or her lifetime only by the option holder (regardless of any community property interest therein of the option holder (regardless of any community property interest therein of the option holder's spouse, if any).
Except as otherwise expressly set forth in this Plan, no right or benefit under this Plan or under any option agreement shall be subject in any manner to anticipation, alienation, hypothecation, or charge, and any such attempted action shall be void. No right or benefit under this Plan or under any option shall in any manner be liable for or subject to debts, contracts, liabilities, or torts of any option holder or any other person except as otherwise may be expressly required by applicable law.
9. TERMINATION OF EMPLOYMENT.
If the option holder who was an employee of the Company ceases to be employed by the Company or any subsidiary or parent, because of discharge for cause (as defined below), that holder's option shall expire concurrently with that discharge for cause. If the option holder ceases to be employed by the Company or any subsidiary or parent, for any reason other than death or discharge for cause (as defined below), the holder's option shall, subject to earlier termination pursuant to Section 6, expire three months thereafter (or after any shorter period provided in the option), and during such period after such older ceases to be an employee the option shall be exercisable only as to those shares to which the option had become exercisable as of the date of such cessation of employment.
The term "cause" as used in this agreement with respect to the discharge by the Company of any option holder, means failure by the option holder to perform in an satisfactory manner the holder's duties as an employee of the Company, as determined by the Board in its discretion, or conduct on the part of the option holder which the Board, in good faith shall determine would reflect so seriously upon the public reputation of the option holder, if that conduct became publicly known, as to prejudice substantially the Company's interests if the option holder were retained as an employee of the Company or any subsidiary or parent.
10. DEATH OF EMPLOYEE.
If any option holder dies while employed by the Company or any other subsidiary or parent, or dies during the period referred to in Section 9 hereof, that holder's option shall, subject to earlier termination pursuant to Section 6, expire one year after the date of death (or after such shorter period as may be provided in the option). During such period after such death the option may be exercised to the extent of shares as to which the option was exercisable as of the date of death by the person or persons to whom the option holder's rights under the option shall passes by will or by the applicable laws of descent and distribution.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
If the outstanding shares of stock of the Company are increased, decreased, or changed into or exchanged for a different number or kind of shares or securities of the Company; through
reorganization, merger, recapitalization, reclassification, stock split or reverse stock split, stock dividend, stock consolidation, or otherwise, an appropriate and proportionate adjustment shall be made in the number and kind of shares as to which options may be granted. A corresponding adjustment changing the number or kind of shares and the exercisable price per share allocated to unexercised options, which shall have been granted prior to any such change, shall likewise be made. Any adjustment, however, in an outstanding option shall be made without change in the total price applicable to the unexercised portion of the option but with a corresponding adjustment in the price for each share covered by the unexercised portion of the option.
Upon dissolution or liquidation of the Company, or upon a reorganization, merger or consolidation of the Company with one or more corporations as a result of which the Company is not the surviving corporation, or upon a sale of substantially all the property of the Company to another corporation, this Plan shall terminate, and any option theretofore granted hereunder shall terminate, unless provision be made in connection with such transaction for the assumption of options previously granted, or the substitution for such options of new options covering the stock of a successor employer corporation, or a parent or subsidiary thereof, with appropriate adjustments as to number or kind of shares and prices.
Adjustments under this section shall be made by the Board, whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding, and conclusive. If an adjustment under this
Section would result in a fractional share interest under an option or any
installment, the Committee's decision as to inclusion or exclusion of that
fractional share interest shall be final but no fractional shares of stock
shall be issued under the Plan on account of any such adjustment.
12. AMENDMENT AND TERMINATION.
The Board may at any time suspend, amend, or terminate the Plan and may, with the consent of an option holder, make such modifications or the terms and conditions of the holder's option as it shall deem advisable. No option may be granted during any suspension of the Plan or after such termination. The amendment, suspension, or termination of the Plan shall not, without the consent of the option holder, alter or impair any rights or obligations under option previously granted under the Plan.
13. TIME OF GRANTING OF OPTIONS.
The granting of an option pursuant to the Plan shall take place at this time of the Committee's action; provided, however, that if the appropriate resolutions of the Committee indicate that an option is to be granted as of and at some future date, that date shall be the date of grant. In the event action by the Committee is taken by unanimous written consent of its members, the action of the Committee shall be deemed to be at the time the last member signs the consent.
14. PRIVILEGES OF STOCK OWNERSHIP; NONDISTRIBUTIVE INTENT.
The holder of an option shall not be entitled to the privilege of stock ownership as to any shares of stock not actually issued and delivered. Upon the grant of an option at a time when there is not in effect under the Securities Act of 1933 a registration statement relating to the stock issuable
upon exercise thereof and available for delivery a prospectus meeting the requirements of Section 10(a)(3) of that Act, the option holder shall represent and warrant in writing to the Company that the shares subject to the option are not being acquired with a view to the distribution thereof. No options granted and no shares shall be issued upon the exercise of any option unless and until any then applicable requirements of the Securities and Exchange Commission, the California Corporations Commissioner, or other regulatory agencies having jurisdiction and of any exchanges upon which stock of the Company may be listed shall have been fully complied with.
15. EFFECTIVE DATE OF THE PLAN.
This Plan shall be effective upon approval thereof by vote or written consent of the Board of Directors.
16. TERMINATION.
Unless previously terminated by the Board of Directors, this Plan shall terminate at the close of business on December 31, 2009 and no options shall be granted under it after that date, but termination of the
Plan shall not affect any option previously granted.
EXHIBIT 5.1
May 8, 2000
National Information Consortium, Inc.
12 Corporate Woods
10975 Benson Street, Suite 390
Overland Park, Kansas 66210
Ladies and Gentlemen:
You have requested our opinion in connection with the Registration Statement on Form S-8 (the "Registration Statement") which is expected to be filed by National Information Consortium, Inc. (the "Company") on or about May 10, 2000, with respect to the offer and sale of 189,197 shares of the Company's common stock, no par value ("Company Stock"), issuable under the 1999 Stock Option Plan of SDR Technologies, (the "Plan") as described in the Registration Statement.
We have examined such records and documents and have made such investigations of law as we have deemed necessary under the circumstances. Based on that examination and investigation, it is our opinion that the shares of Company Stock referred to above will be, when sold in accordance with the Plan and in the manner described in the Registration Statement, validly issued, fully paid and non-assessable.
We consent to the use in the Registration Statement of our name and the statement with respect to our firm under the heading of "Interests of Named Experts and Counsel."
Sincerely yours,
ROTHGERBER JOHNSON & LYONS LLP
/s/ Rothgerber Johnson & Lyons LLP |
EXHIBIT 23.1
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 17, 2000 relating to the financial statements of National Information Consortium, Inc. and its subsidiaries, which appears in National Information Consortium's Annual Report on Form 10-K for the year ended December 31, 1999.
/s/ PricewaterhouseCoopers LLP Kansas City, Missouri May 9, 2000 |