As filed with the Securities and Exchange Commission on June 27, 2006
Securities Act Registration No. 333-_____________
Exchange Act File No. 001-31924
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NELNET, INC.
(Exact name of registrant as specified in its charter)
NEBRASKA 84-0748903
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
121 SOUTH 13TH STREET, SUITE 201
LINCOLN, NEBRASKA 68508
(Address of Principal Executive Offices) (Zip Code)
NELNET, INC. EMPLOYEE STOCK PURCHASE LOAN PLAN
(Full title of the plan)
TERRY J. HEIMES
CHIEF FINANCIAL OFFICER
NELNET, INC.
121 SOUTH 13TH STREET, SUITE 201
LINCOLN, NEBRASKA 68508
(Name and address of agent for service)
(402) 458-2370
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
maximum
Proposed maximum aggregate Amount of
Title of securities Amount to be offering price offering registration
to be registered registered per share price fee
---------------- ---------- --------- ----- ------------
Class A Common Stock, 1,000,000 $40.59(1) $40,590,000 $4,343.13(2)
par value $0.01 per shares
share
(1) Solely for the purpose of computing the registration fee in accordance with
Rule 457(h) under the Securities Act of 1933, the price shown is based upon
the price of $40.59 per share, which is the average of the high and low
selling prices for the registrant's Class A common stock as reported on the
New York Stock Exchange on June 23, 2006.
(2) Calculated under Section 6(b) of the Securities Act of 1933 as 0.000107 of
$40,590,000.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Documents containing the information specified in Part I of Form S-8
will be sent or given to participants in the Nelnet, Inc. Employee Stock
Purchase Loan Plan as specified by Rule 428(b)(1) under the Securities Act of
1933. Those documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II hereof, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the registrant with the U.S. Securities
and Exchange Commission are incorporated by reference in this registration
statement:
(1) The registrant's Annual Report on Form 10-K for the year
ended December 31, 2005;
(2) The registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2006;
(3) The registrant's Current Reports on Form 8-K filed on
January 11, 2006, January 31, 2006, February 21, 2006,
February 24, 2006, April 20, 2006, April 28, 2006, May 23,
2006, June 1, 2006, and June 26, 2006 (in each case,
except for information furnished pursuant to Item 2.02 or
Item 7.01 thereof); and
(4) The description of the registrant's Class A Common Stock,
par value $0.01 per share, contained in the registrant's
Registration Statement on Form 8-A filed on December 8,
2003, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the registrant subsequent to the date of this
registration statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 prior to the filing of a post-effective
amendment hereto which indicates that all securities offered hereby have been
sold or which deregisters any 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 the filing of such documents.
Any statement contained herein or in a document incorporated by
reference in this registration statement 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 that
also is or is deemed to be incorporated by reference herein, modifies and
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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant is a Nebraska corporation. Under the Nebraska Business
Corporation Act, a Nebraska corporation may provide indemnification to directors
and officers for judgments, fines, settlements and expenses, including
attorney's fees, incurred in connection with any threatened, pending or
completed action, suit or proceeding other than an action by or in the right of
the corporation. This applies to any civil, criminal, investigative or
administrative action provided that the director or officer involved acted in
good faith, in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation may also provide indemnification to directors and officers for
judgments, fines, settlements and expenses, including attorney's fees, incurred
in connection with any threatened, pending or completed action or suit by or in
the right of the corporation if such director or officer acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation. However, no indemnification shall be made in respect of any
claim, issue or matter in which such person is adjudged to be liable for
negligence or misconduct in the performance of his duties to the corporation
unless the court in which the action is brought deems indemnity proper. The
grant of indemnification to a director or officer shall be determined by a
majority of a quorum of disinterested directors, by a written opinion from
independent legal counsel or by the shareholders. Indemnification shall be
provided to any directors and officers for expenses, including attorney's fees,
actually and reasonably incurred in the defense of any action, suit or
proceeding to the extent that he or she has been successful on the merits.
The registrant's amended and restated articles of incorporation provide
that the registrant shall, to the maximum extent and in the manner permitted by
the Nebraska Business Corporation Act, indemnify each of its directors,
officers, employees and agents against expenses, including attorney's fees,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with any proceeding arising by reason of the fact that such person
is or was an agent of the registrant. The registrant shall pay expenses incurred
in defending any civil or criminal action or proceeding for which
indemnification is available in advance of the final disposition of such action
or proceeding, following authorization thereof by the board of directors in the
case of an employee or agent, upon receipt of an undertaking by or on behalf of
the indemnified party to repay such amount if it shall be ultimately determined
by final judicial decision, from which there is not further right of appeal,
that the indemnified party is not entitled to be indemnified as authorized in
the registrant's amended and restated articles of incorporation.
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In addition, the registrant's amended and restated articles of
incorporation provide that the registrant may purchase and maintain insurance on
behalf of any person who is or was an agent of the registrant against any
liability asserted against or incurred by such person in such capacity arising
out of such person's status as such, whether or not the registrant would have
the power to indemnify him or her against such liability under the registrant's
amended and restated articles of incorporation and the Nebraska Business
Corporation Act. The registrant has obtained insurance for the benefit of its
officers and directors insuring such persons against liabilities, including
liabilities under the securities laws.
The registrant's amended and restated articles of incorporation also
limit the personal liability of the directors of the registrant for breaches of
fiduciary duty to the registrant or its shareholders, except in certain
circumstances including (1) breach of the duty of loyalty to the registrant or
its shareholders, (2) acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of law, (3) acts or omissions for
which the Nebraska Business Corporation Act does not permit indemnity for
directors under Section 21-2018(2)(e) of the Nebraska Business Corporation Act,
which include intentional infliction of harm on the registrant or its
shareholders, voting for or assenting to an unlawful distribution and
intentional violation of criminal law, or (4) any transaction from which the
director derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are furnished as part of this registration
statement:
Exhibit
No. Description
------- -----------
4.1 Form of Class A Common Stock Certificate of Nelnet, Inc. (filed
on November 24, 2003 as Exhibit 4.1 to the registrant's
Registration Statement on Form S-1 (Registration No. 333-108070)
and incorporated herein by reference).
4.2 Registration Rights Agreement by and among Nelnet, Inc. and the
shareholders of Nelnet, Inc. signatory thereto (filed on
November 24, 2003 as Exhibit 4.11 to the registrant's
Registration Statement on Form S-1 (Registration No. 333-108070)
and incorporated herein by reference).
5.1* Opinion of Perry, Guthery, Haase & Gessford, P.C., L.L.O.
23.1* Consent of KPMG LLP.
23.2* Consent of Perry, Guthery, Haase & Gessford, P.C., L.L.O.
(included in Exhibit 5.1).
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24.1* Power of Attorney (included in signature page hereof).
99.1 Nelnet, Inc. Employee Stock Purchase Loan Plan (filed as Exhibit
99.2 to the registrant's Current Report on Form 8-K filed on
June 1, 2006 and incorporated herein by reference).
----------------------------
* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereto) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in the
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 Securities and Exchange Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 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;
provided, however, that the undertakings set forth in 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 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
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(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; and
(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) Filings Incorporating Subsequent Exchange Act Documents by
Reference. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
(c) Filing of Registration Statement on Form S-8. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant
pursuant to any provision or arrangement whereby the registrant may indemnify a
director, officer or controlling person of the registrant against liabilities
arising under the Securities Act, 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 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.
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SIGNATURES
THE REGISTRANT. 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 Lincoln, State of Nebraska, on June 27, 2006.
NELNET, INC.
By: /s/ Michael S. Dunlap
--------------------------------
Michael S. Dunlap
Chairman of the Board of Directors
and Co-Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby authorizes, constitutes and appoints Michael S. Dunlap,
Stephen F. Butterfield and Terry J. Heimes his or her true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
and each with full power to act alone, for the undersigned and in his or her own
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments and other amendments thereto) to this
Registration Statement on Form S-8 and to file the same, with all exhibits
thereto and other documents in connection therewith, with the United States
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing as
the undersigned could do in person, hereby ratifying and confirming all that
each said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Michael S. Dunlap Chairman of the Board of Directors June 27, 2006
-------------------------- and Co-Chief Executive Officer
Michael S. Dunlap (Co-Principal Executive Officer)
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Signature Title Date
--------- ----- ----
/s/ Stephen F. Butterfield Vice-Chairman of the Board of June 27, 2006
-------------------------- Directors and Co-Chief Executive
Stephen F. Butterfield Officer (Co-Principal Executive
Officer)
/s/ Terry J. Heimes Chief Financial Officer June 27, 2006
-------------------------- (Principal Financial Officer and
Terry J. Heimes Principal Accounting Officer)
/s/ James P. Abel Director June 27, 2006
--------------------------
James P. Abel
/s/ Don R. Bouc Director June 27, 2006
--------------------------
Don R. Bouc
/s/ Thomas E. Henning Director June 27, 2006
--------------------------
Thomas E. Henning
/s/ Arturo R. Moreno Director June 27, 2006
--------------------------
Arturo R. Moreno
/s/ Brian J. O'Connor Director June 27, 2006
--------------------------
Brian J. O'Connor
/s/ Michael D. Reardon Director June 27, 2006
--------------------------
Michael D. Reardon
/s/ James H. Van Horn Director June 27, 2006
--------------------------
James H. Van Horn
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