As filed with the Securities and Exchange Commission on May 28, 2009

Registration No. 333-          

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

NIC INC.

(Exact name of registrant as specified in its charter)

 

Delaware

52-2077581

(State or other jurisdiction of

(I.R.S. Employer

incorporation or organization)

Identification No.)

 

25501 West Valley Parkway, Suite 300
Olathe, Kansas

66061

(Address of Principal Executive Offices)

(Zip Code)

 

2006 Amended and Restated Stock Option and Incentive Plan

(Full title of the plan)

 

 

William F. Bradley, Jr., Esq.

Chief Operating Officer, General Counsel and Secretary

NIC Inc.

25501 West Valley Parkway, Suite 300

Olathe, Kansas 66061

(Name and address of agent for service)

 

(877) 234-3468

(Telephone number, including area code, of agent for service)

 

 

Copy to:

 

John A. Granda, Esq.

Stinson Morrison Hecker LLP

1201 Walnut, Suite 2900

Kansas City, MO 64106

(816) 842-8600

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer o

 

 

 

Accelerated filer

x

Non-accelerated filer o

 

(Do not check if a smaller reporting company)

 

Smaller reporting company

o

 

CALCULATION OF REGISTRATION FEE

 

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, par value $0.0001 per share

 

5,000,000 shares

 

$

5.51

 

$

27,550,000.00

 

$

1.537.29

 

(1)            Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued in connection with a share split, share dividend or similar event, for which no separate consideration will be paid.

(2)            Calculated pursuant to Rules 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the amount of the registration fee, on the basis of the average of the high and low prices of the Registrant’s common stock as reported on the NASDAQ Global Select Market on May 21, 2009.

 


 

EXPLANATORY NOTE

 

Pursuant to General Instruction E to Form S-8, this Registration Statement is being filed by NIC Inc. (the “Registrant”) for the purpose of registering additional securities of the same class as other securities for which a Registration Statement on Form S-8 has previously been filed and is effective.  Except as otherwise set forth below, this Registration Statement on Form S-8 incorporates by reference the contents of the Registration Statement on Form S-8 (File No. 333-136016) filed by the Registrant on July 25, 2006 and the Registration Statement on Form S-8 (File No. 333-83171) filed by the Registrant on July 19, 1999, each as amended, and each relating to the Registrant’s 2006 Amended and Restated Stock Option and Incentive Plan and its predecessor plans (as amended, the “Plan”).  This Registration Statement is being filed to register an additional 5,000,000 shares of the Registrant’s common stock subject to issuance under the Plan, as amended on May 5, 2009 to increase the number of shares authorized for issuance thereunder.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents previously filed (other than the portions of those documents furnished or otherwise not deemed to be filed) by the Registrant with the Securities and Exchange Commission (the “SEC”) are hereby incorporated by reference in this Registration Statement:

 

·       The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2008 filed with the SEC on March 13, 2009, including portions of the Registrant’s Annual Proxy Statement filed with the SEC on March 27, 2009 that are incorporated by reference therein;

 

·       The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2009 filed with the SEC on May 5, 2009;

 

·       The Registrant’s Current Reports on Form 8-K filed with the SEC on February 4, 2009, February 9, 2009, and May 11, 2009; and

 

·       The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A/A (File No. 000-26621) filed with the SEC on May 28, 2009, including any amendment or report filed for the purpose of updating such description.

 

All documents subsequently filed (other than the portions of those documents furnished or otherwise not deemed to be filed) by the Registrant 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 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.

 

Any statement contained herein or in a document 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 other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such earlier 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.

 

2


 

Item 6. Indemnification of Officers and Directors.

 

As permitted by the Delaware General Corporation Law of the State of Delaware (the “DGCL”), the Registrant’s Certificate of Incorporation provides its directors will not be personally liable to the Registrant or its stockholders 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 corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.

 

Section 145 of the DGCL gives the Registrant the power, subject to certain conditions and limitations, to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than action by or in the right of the Registrant) by reason of the fact that the person is or was a director, officer, employee or agent of the Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.  Article X of the Registrant’s Certificate of Incorporation provides Section 145 coverage of indemnification and advancement of expenses to each person who is or was a director or officer of the Registrant or is or was a director or officer of the Registrant serving at the Registrant’s request as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust or employee benefit plan, to the fullest extent permitted under Delaware law.

 

The Registrant maintains insurance for the benefit of its directors and officers to insure these persons against certain liabilities, including liabilities under the securities laws.

 

The Registrant enters into indemnification agreements with each of its directors and executive officers.  The indemnification agreements supplement existing indemnification provisions of the Registrant’s Certificate of Incorporation and Bylaws and, in general, provide for indemnification of and advancement of expenses to the indemnified party, subject to the terms and conditions provided in the indemnification agreement. The indemnification agreements also establish processes and procedures for indemnification claims, advancement of expenses and other determinations with respect to indemnification.

 

Item 8. Exhibits.

 

Exhibit No.

 

Description

 

 

 

5.1

 

Opinion of Stinson Morrison Hecker LLP*

 

 

 

23.1

 

Consent of Stinson Morrison Hecker LLP (included in Exhibit 5.1)*

 

 

 

23.2

 

Consent of PricewaterhouseCoopers LLP*

 

 

 

24.1

 

Power of Attorney*

 

 

 

99.1

 

2006 Amended and Restated Stock Option and Incentive Plan, as amended (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on May 11, 2009)

 

* Filed herewith.

 

Item 9. Undertakings.

 

(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:

 

3


 

(i)             To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(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 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 a 20% 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;

 

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and the information required to be included in the post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2)  That, for the purpose of determining any liability under the Securities Act, 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.

 

(b)            The undersigned Registrant hereby undertakes that for purposes of determining any liability under the Securities Act, 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 any employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.

 

(c)            Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person 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 Securities Act and will be governed by the final adjudication of such issue.

 

4


 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Olathe, State of Kansas, on this 28 th  day of May, 2009.

 

 

 

NIC INC.,

 

a Delaware corporation

 

 

 

By:

 

/s/ Harry H. Herington

 

Name:

Harry H. Herington

 

Title:

Chairman of the Board 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.

 

By:

/s/ Harry H. Herington

 

Chairman of the Board and Chief

 

May 28, 2009

 

Harry H. Herington

 

Executive Officer (Principal Executive Officer)

 

 

 

 

 

 

 

 

By:

*

 

Chief Financial Officer (Principal Financial

 

May 28, 2009

 

Stephen M. Kovzan

 

Officer and Principal Accounting Officer)

 

 

 

 

 

 

 

 

By:

*

 

Lead Director

 

May 28, 2009

 

Art N. Burtscher

 

 

 

 

 

 

 

 

 

 

By:

*

 

Director

 

May 28, 2009

 

Daniel J. Evans

 

 

 

 

 

 

 

 

 

 

By:

*

 

Director and Chairman Emeritus

 

May 28, 2009

 

Jeffery S. Fraser

 

 

 

 

 

 

 

 

 

 

By:

*

 

Director

 

May 28, 2009

 

Ross C. Hartley

 

 

 

 

 

 

 

 

 

 

By:

*

 

Director

 

May 28, 2009

 

Alexander C. Kemper

 

 

 

 

 

 

 

 

 

 

By:

*

 

Director

 

May 28, 2009

 

Pete Wilson

 

 

 

 

 

* By:

/s/ Harry H. Herington

 

 

 

 

 

Harry H. Herington, Attorney-in-fact

 

 

 

 

 

5


 

EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

5.1

 

Opinion of Stinson Morrison Hecker LLP*

 

 

 

23.1

 

Consent of Stinson Morrison Hecker LLP (included in Exhibit 5.1)*

 

 

 

23.2

 

Consent of PricewaterhouseCoopers LLP*

 

 

 

24.1

 

Power of Attorney*

 

 

 

99.1

 

2006 Amended and Restated Stock Option and Incentive Plan, as amended (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on May 11, 2009)

 

* Filed herewith.

 

6

Exhibit 5.1

 

STINSON MORRISON HECKER LLP

 

www.stinson.com

 

 

 

1201 Walnut, Suite 2900

Kansas City, MO 64106-2150

 

Tel (816) 842-8600

 

May 28, 2009

 

NIC Inc.

25501 West Valley Parkway, Suite 300

Olathe, KS 66061

 

Re:          Registration Statement on Form S-8

 

Dear Ladies and Gentlemen:

 

We have acted as counsel to NIC Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) by the Company on or about the date hereof under the Securities Act of 1933, as amended (the “Act”).  The Registration Statement relates to registration of an additional 5,000,000 shares of the Company’s common stock, $0.0001 par value per share (collectively, the “Shares”), to be issued by the Company under its 2006 Amended and Restated Stock Option and Incentive Plan, as amended (the “Plan”).

 

In connection therewith, we have relied upon, among other things, our examination of such documents, records of the Company and certificates of its officers and public officials as we have deemed necessary for purposes of the opinions expressed below.  We express no opinion as to matters under or involving the laws of any jurisdiction other than the corporate law of the State of Delaware and the federal law of the United States of America.

 

For purposes of the opinion expressed below, we have assumed (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals and (iii) the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties thereto other than the Company.  This opinion assumes that the provisions of the Company’s Certificate of Incorporation will not be amended after the date hereof.

 

Based upon and subject to the foregoing, and having regard for such legal considerations as we have deemed relevant, assuming that upon issuance such Shares together with all shares of common stock previously issued or reserved for issuance and not duly and lawfully retired do not exceed 200,000,000 shares, and assuming that the consideration paid for such Shares complies with the applicable provisions of

 


 

the Delaware General Corporation Law and the Delaware Constitution regarding the form and amount of consideration required for valid issuance of capital stock, upon the issuance and sale of said 5,000,000 Shares for the consideration and upon the terms and conditions set forth in the Plan, said Shares will be legally issued, fully paid and non-assessable.

 

We do not undertake to advise you of any changes in the opinions expressed herein from matters that might hereafter arise or be brought to our attention.

 

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules of the Commission.

 

Sincerely,

 

STINSON MORRISON HECKER LLP

 

/s/ Stinson Morrison Hecker LLP

 

2

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 12, 2009 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in NIC Inc.’s Annual Report on Form 10-K for the year ended December 31, 2008.

 

/s/ PricewaterhouseCoopers LLP

Kansas City, MO

May 28, 2009

 

 

Exhibit 24.1

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS THAT each of the undersigned directors and officers of NIC INC., a Delaware corporation (the “Company”), which will file with the Securities and Exchange Commission, Washington, D. C. (the “Commission”), under the provisions of the Securities Act of 1933, as amended, a (i) Registration Statement on Form S-8 (or any appropriate form then in effect), for the registration of shares of Common Stock, $0.0001 par value, of the Company for issuance pursuant to the Company’s 2006 Amended and Restated Stock Option and Incentive Plan, as amended, (ii) a Post Effective Amendment No. 3 to the Registration Statement on Form S-8 (File No. 333-83171), (iii) a Post Effective Amendment No. 1 to the Registration Statement on Form S-8 (File No. 333-37000) and (iv) a Post Effective Amendment No. 2 to the Registration Statement on Form S-8 (File No. 333-136016) (together, the “Applicable Filings”) , hereby constitutes and appoints Harry H. Herington, William F. Bradley, Jr. and Stephen M. Kovzan, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign the Applicable Filings and any and all amendments, including post-effective amendments, to the Applicable Filings and any other documents filed with the Commission, and to file the same, with all exhibits to the Applicable Filings and other documents in connection with the Applicable Filings, with the Commission or any other regulatory authority, and each of the undersigned hereby grants to the attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, and ratifies and confirms all that the attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue of this power of attorney.

 

IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney as of the 28 th  day of May, 2009.

 

 

 

/s/ Harry H. Herington

 

Chairman of the Board and Chief

 

Harry H. Herington

 

Executive Officer (Principal Executive

 

 

 

Officer)

 

 

 

 

 

/s/ Stephen M. Kovzan

 

Chief Financial Officer (Principal

 

Stephen M. Kovzan

 

Financial Officer and Principal

 

 

 

Accounting Officer)

 

 

 

 

 

/s/ Art N. Burtscher

 

Lead Director

 

Art N. Burtscher

 

 

 

 

 

 

 

/s/ Daniel J. Evans

 

Director

 

Daniel J. Evans

 

 

 

 

 

 

 

/s/ Jeffery S. Fraser

 

Director and Chairman Emeritus

 

Jeffery S. Fraser

 

 

 

 

 

 

 

/s/ Ross C. Hartley

 

Director

 

Ross C. Hartley

 

 

 

 

 

 

 

/s/ Alexander C. Kemper

 

Director

 

Alexander C. Kemper

 

 

 

 

 

 

 

/s/ Pete Wilson

 

Director

 

Pete Wilson