As filed with the Securities and Exchange Commission on February 25, 2004
Registration No. 333-46924
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE AMERICAN EDUCATION CORPORATION
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(Exact name of registrant as specified in its charter)
Nevada 73-1621446
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7506 N. Broadway Extension, Suite 505,
Oklahoma City, Oklahoma 73116
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(Address of principal executive offices) (Zip Code)
The American Education Corporation Stock Option Plan for Employees
The American Education Corporation Directors' Stock Option Plan
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(Full title of the plans)
Jeffrey E. Butler Copy to:
The American Education Corporation Armand Paliotta, Esq.
7506 North Broadway Extension, Suite 505 Hartzog Conger Cason &
Oklahoma City, Oklahoma 73116 Neville
(405) 840-6031 201 Robert S. Kerr,
Suite 1600
Oklahoma City, Oklahoma
73102
(405) 235-7000
(Name, address, and telephone number
of agent for service)
Calculation of Registration Fee
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Proposed
Proposed maximum
Title of maximum aggregate Amount of
securities to Amount to be offering price offering registration
be registered registered(1) per share price fee
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See below (1) N/A N/A N/A N/A
(1) No additional securities are to be registered, and registration
fees were paid upon filing of the original Registration Statement
on Form S-8 (Registration No. 333-46924 ). Therefore, no further
registration fee is required.
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this "Amendment") is being filed
pursuant to Rule 414(d) of the Securities Act of 1933, as amended (the
"Securities Act"), and constitutes Amendment No. 1 to the Registration
Statement on Form S-8 filed on September 29, 2000, Registration
Statement No. 333-46924 (the "Registration Statement"), by The American
Education Corporation, a Nevada corporation ("AEC Nevada"), which is the
successor to The American Education Corporation, a Colorado corporation
("AEC Colorado"), following a statutory merger effective 12:01 a.m.
(Pacific Standard time) on January 1, 2004 (the "Merger"), for the
purpose of changing AEC Colorado's state of incorporation to Nevada.
In connection with the Merger, AEC Nevada succeeded by operation of law
to all of the assets and liabilities of AEC Colorado. The Merger was
approved by the shareholders of AEC Colorado at the Annual Meeting of
Shareholders held on November 15, 2001, for which proxies were solicited
pursuant to Section 14(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Except as modified by this Amendment, AEC
Nevada, by virtue of this Amendment, expressly adopts the Registration
Statement as its own registration statement for all purposes of the
Securities Act and the Exchange Act.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The following documents filed in 2003 by American Education
Colorado, the predecessor of the Registrant, or in 2004 by American
Education Nevada are hereby incorporated by reference and made a part
hereof:
(a) Annual Report on Form 10-KSB for the fiscal year ended December
31, 2002, filed on March 31, 2003, as amended by the Form 10-KSB/A filed
on May 2, 2003.
(b) Quarterly Reports on Form 10-QSB for the quarters ended
September 30, 2003, June 30, 2003, and March 31, 2003, filed on November
14, 2003, August 14, 2003 and May 15, 2003, respectively.
(c) Current Reports on Form 8-K filed on January 5, 2004, October
29, 2003, October 21, 2003, September 29, 2003, September 3, 2003, August
21, 2003 and August 4, 2003.
(d) The description of AEC Nevada's common stock contained in Post-
Effective Amendment No. 2 to Form 8-A12G/A filed on January 20, 2004.
In addition, all documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in this
registration statement and to be part hereof from the date of filing of
such documents unless all or a portion of such documents are deemed not
to be filed.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superceded, for purposes of this registration statement, to the extent
that a statement contained herein or in any subsequently filed document
that also is or is deemed to be incorporated by reference herein,
modifies or supercedes such statement. Any statement modified or
superceded shall not be deemed, except as so modified or superceded,
to constitute part of this registration statement.
Item 4. Description of Securities
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Incorporated by reference. See Item 3.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
Item 6. Indemnification of Directors and Officers
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Section 78.7502(1) of the Nevada Revised Statutes provides that a
corporation may 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, except an action by or in the right of the corporation, by
reason of the fact that the person is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys' fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with the action, suit or proceeding if the person (i) acted in good faith
and in a manner which 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, and (ii) is not liable pursuant to Section 78.138 of the Nevada
Revised Statutes.
Further, Section 78.7502(2) of the Nevada Revised Statutes provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if the
person (i) acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
corporation, and (ii) is not liable pursuant to Nevada Revised Statutes
Section 78.138. Such indemnification may not be made for any claim,
issue or matter as to which such person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent a court of competent
jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled
to indemnity for such expenses as the court deems proper. To the extent
that a director, officer, employee, or agent of a corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 78.7502(1) or 78.7502(2) of the
Nevada Revised Statutes, or in defense of any claim, issue or matter
therein, the Nevada Revised Statutes require that the corporation
indemnify him against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense.
In the case of any discretionary indemnification, Nevada law
requires, unless ordered by a court or advanced by the corporation upon
receipt of an understanding by or on behalf of the officer or director to
repay the amount if it is ultimately determined by a court that he is not
entitled to be indemnified by the corporation, a finding to be made that
the officer, director, employee or agent has met the requisite standard
of conduct by (i) a majority vote of the board of directors for which the
quorum does not consist of parties to the action, suit or proceeding;
(ii) if a majority vote of a quorum consisting of directors who are not
parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or (iii) the stockholders.
Section 78.037 of the Nevada Revised Statutes permits a corporation
to eliminate or limit tthe personal liability of its directors and
officers to the corporation and its stockholders for damages for breach
of fiduciary duty as a director or officer, except for liability for (i)
acts or omissions which involve intentional misconduct, fraud or a
knowing violation of law, or (ii) the payment of distributions in
violation of Nevada law. The Company's Articles of Incorporation provide
that the Company's officers and directors will not be personally liable
to the Company or any of its stockholders for damages for breach of their
fiduciary duty as a director or officer. However, each officer and
director will continue to be subject to liability for acts or omissions
which involve intentional misconduct, fraud or a knowing violation of law
or for authorizing the payment of dividends in violation of Nevada
corporate law. Further, directors and officers of the Company may still
be held liable under any other laws, such as federal securities laws.
The Company's Articles of Incorporation also provide that the
Company shall indemnify any director, officer, or employee of the Company
for any expense reasonably incurred by reason of being or having been a
director, officer, or employee of the Company to the fullest extent
permitted by law.
Under the Company's Bylaws, the Company is permitted to indemnify
its directors, officers, employees and agents to the fullest extent
permitted under Nevada law. The Company is also empowered under its
Bylaws to enter into indemnification agreements with its directors,
officers, employees and agents and to purchase insurance on behalf of any
person it is required or permitted to indemnify.
Item 7. Exemption from Registration Claimed
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Not Applicable.
Item 8. Exhibits
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2.1 Agreement of Merger and Plan of Reorganization, dated as of
October 5, 2001, between The American Education Corporation, a
Colorado corporation, and The American Education Corporation, a
Nevada corporation.*
3.1 Articles of Incorporation of The American Education
Corporation, a Nevada corporation.**
3.2 Bylaws of The American Education Corporation, a Nevada
corporation.***
5.1 Opinion of Hartzog Conger Cason & Neville.****
23.1 Consent of Steakley Gilbert & Morgan, P.C.****
*Filed as Annex A to the definitive Proxy Statement on Schedule 14A filed
on October 12, 2001 (File No. 000-11078) and incorporated herein by
reference.
**Filed as Annex B to the definitive Proxy Statement on Schedule 14A
filed on October 12, 2001 (File No. 000-11078) and incorporated herein by
reference.
***Filed as Annex C to the definitive Proxy Statement on Schedule 14A
filed on October 12, 2001 (File No. 000-11078) and incorporated herein by
reference.
****Filed herewith.
Item 9. Undertakings
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(a) The undersigned registrant hereby undertakes as follows:
(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;
(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
thereof) which, individually or together, represent a
fundamental change in the information set forth in the
registration statement;
(iii) to include any additional or changed information
on the plan of distribution;
Provided, however, that Paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required in a post-effective amendment
by those paragraphs is incorporated by reference from periodic
reports filed by the registrant under the Exchange Act.
(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.
(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 an 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 of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Post-Effective Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Oklahoma City, State of Oklahoma, on the 25th
day of February, 2004.
THE AMERICAN EDUCATION CORPORATION
By: /s/ Jeffrey E. Butler
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Jeffrey E. Butler,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been
signed by the following persons in the capacities indicated on February 25,
2004.
SIGNATURE TITLE
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By: /s/ Jeffrey E. Butler Chief Executive Officer and Director
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Jeffrey E. Butler
By: /s/ Monty C. McCurry Director
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Monty C. McCurry
By: /s/ Newton W. Fink Director
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Newton W. Fink
By: /s/ Stephen E. Prust Director
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Stephen E. Prust
EXHIBIT INDEX
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Exhibit No. Exhibit Description
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2.1 Agreement of Merger and Plan of Reorganization, dated
as of October 5, 2001, between The American
Education Corporation, a Colorado corporation, and
The American Education Corporation, a Nevada
corporation
3.1 Articles of Incorporation of The American Education
Corporation, a Nevada corporation.
3.2 Bylaws of The American Education Corporation, a
Nevada corporation
5.1 Opinion of Hartzog Conger Cason & Neville
23.1 Consent of Steakley Gilbert & Morgan, P.C.
Exhibit 5.1
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February 25, 2004
The American Education Corporation
7506 North Broadway Extension
Suite 505
Oklahoma City, Oklahoma 73116
Gentlemen:
In connection with the preparation and filing of Post-Effective
Amendment No. 1 to the registration statement on Form S-8 filed on
September 29, 2000, Registration No. 333-46924 (the "Registration
Statement"), pursuant to Rule 414(d) of the Securities Act of 1933, as
amended (the "Securities Act"), relating to the registration of shares of
common stock, par value of $0.025 per share (the "Securities"), of The
American Education Corporation, a Nevada corporation (the "Company"),
issuable under The American Education Corporation Stock Option Plan for
Employees and The American Education Corporation Directors' Stock Option
Plan (collectively, the "Plans"), in connection with, and upon completion
of, a reincorporation merger whereby the Company's predecessor, The
American Education Corporaation, a Colorado corporation("AEC Colorado"),
merged with and into the Company, its wholly owned Nevada subsidiary,
with the Nevada subsidiary being the surviving corporation, we, as
counsel to the Company and its predecessor, AEC Colorado, have examined
such corporate records, certificates and other documents, and such
questions of law, as we have considered necessary or appropriate for the
purposes of this opinion. Upon the basis of such examination, it is our
opinion that the Securities have been duly authorized, and when offered
and sold pursuant to the terms and conditions of the Plans, will be
validly issued and fully paid and nonassessable.
We note that the Company is deemed a "successor issuer" of AEC
Colorado for purposes of Rule 414(d) under the Securities Act, and may
expressly adopt the Registration Statement of AEC Colorado as its own
registration statement for all purposes of the Securities Act by filing
Post-Effective Amendment No. 1 to the Registration Statement.
The foregoing opinion is limited to the Federal laws of the United
States and the Private Corporations Act of the State of Nevada and we are
expressing no opinion as to the effect of the laws of any other
jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by
us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Post-Effective Amendment No. 1 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 Securities Act.
Very truly yours,
HARTZOG CONGER CASON & NEVILLE
/s/Hartzog Conger Cason & Neville
Exhibit 23.1
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8 Amendment No. 1) pertaining to the American Education
Corporation Stock Option Plan for Employees and The American Education
Corporation Directors' Stock Option Plan of our report dated March 10,
2003, with respect to the consolidated financial statement of The
American Education Corporation included in its Annual Report (Form 10-
KSB) for the year ended December 31, 2002, filed with the Securities and
Exchange Commission.
Steakley Gilbert & Morgan, P.C.
February 25, 2004
Oklahoma City, Oklahoma