As filed with the Securities and Exchange Commission on June 29, 2001
Registration No.333
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
PROSOFTTRAINING.COM
(Exact Name of Registrant as Specified in Its Charter)
3001 Bee Caves Road, Suite 300
Austin, Texas 78746
(512) 328-6140
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Executive Offices)
Nevada 87-0448639
(State or Other Jurisdiction of Incorporation or (I.R.S. Employer Identification No.)
Organization)
JERRELL M. BAIRD
Chief Executive Officer
ProsoftTraining.com
3001 Bee Caves Road, Suite 300
Austin, Texas 78746
(512) 328-6140
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent For Service)
--------------------
Copy to:
William L. Twomey
Hewitt & McGuire, LLP
19900 MacArthur Boulevard, Suite 1050
Irvine, California 92612
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If only the securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an Offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same Offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same Offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
Pursuant to Rule 429 of the Securities Act of 1933, the Prospectus
contained herein is a combined Prospectus relating to securities registered
hereby and under Registration Statement No. 333-40982, Registration Statement
No. 333-11247, Registration Statement No. 333-28993, Registration Statement No.
333-35249, Registration Statement No. 333-30336, Registration Statement No.
333-53000, and Registration Statement No. 333-57764.
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CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Title of Each Class Proposed Maximum Proposed Maximum
of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share (1) Price (1) Registration Fee
-----------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.001 684,134 $1.20 $820,896.80 $205.24
per share (2)
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(1) Calculated pursuant to Rule 457(c) on the basis of the last trade price
of the Company's Common Stock on June 25, 2001, as reported by the
NASDAQ NMS.
(2) An additional 3,387,291 shares of Common Stock to be sold by
stockholders have been registered under an earlier Registration
Statement on Form S-1 (File No. 333-11247) which was initially declared
effective by the Securities and Exchange Commission ("SEC") on November
27, 1996; an additional 595,664 shares of Common Stock to be sold by
stockholders have been registered under another Registration Statement
on Form S-1 (File No. 333-28993) which was initially declared effective
by the SEC on July 2, 1997; an additional 1,894,258 shares of Common
Stock to be sold by stockholders have been registered under an earlier
Registration Statement on Form S-3 (File No. 333-35249) which was
initially declared effective on March 3, 1999; an additional 298,070
shares of Common Stock to be sold by stockholders have been registered
under an earlier Registration Statement on Form S-3 (File No. 333-
30336) which was initially declared effective on February 28, 2000; an
additional 3,599,983 shares of Common Stock to be sold by stockholders
have been registered under an earlier Registration Statement on Form S-
3 (File No. 333-40982) which was initially declared effective on July
19, 2000; an additional 753,561 shares of Common Stock to be sold by
stockholders have been registered under an earlier Registration
Statement on Form S-3 (File No. 333-53000) which was initially declared
effective on January 10, 2001; and an additional 154,831 shares of
Common Stock to be sold by stockholders have been registered under an
earlier Registration Statement on Form S-3 (File No. 333-57764) which
was initially declared effective on April 11, 2001. Accordingly, all
eight Registration Statements use the Prospectus that is a part of this
Registration Statement.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
================================================================================
6,209,961 Shares
PROSOFTTRAINING.COM
Common Stock
Shares of common stock of ProsoftTraining.com are being offered for
resale by certain of our stockholders by this Prospectus. The Shares being
offered include 4,930,535 shares presently outstanding shares and 1,279,426
shares which are issuable upon exercise of outstanding common stock purchase
warrants. The Shares will be sold from time to time by the Selling Stockholders
named in this Prospectus through public or private transactions, on or off the
Nasdaq National Market System, at prevailing market prices, or at privately
negotiated prices. We will not receive any of the proceeds from the sale of the
Shares, other than the exercise price of any common stock purchase warrants
which are exercised.
The Common Stock is traded on the Nasdaq National Market System under
the symbol "POSO." The closing bid price of the Common Stock was $1.20 on June
25, 2001.
------------------------------
Investing in the Common Stock Involves a High Degree of Risk. You
Should Purchase Shares Only if You Can Afford a Complete Loss. See "Risk
Factors" beginning on Page 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
Prospectus dated July __, 2001
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement that we filed with
the Securities and Exchange Commission (the "SEC"). The Prospectus relates to
6,209,961 shares (the "Shares") of our common stock ("Common Stock") which the
selling stockholders named in this Prospectus (the "Selling Stockholders") may
sell from time to time. We will not receive any of the proceeds from such sales,
other than the exercise price of any common stock purchase warrants which are
exercised.
The Shares have not been registered under the securities laws of any
state or other jurisdiction as of the date of this Prospectus. Brokers or
dealers should confirm the existence and exemption from registration or
effectuate such registration in connection with any offer and sale of the
Shares.
TABLE OF CONTENTS
PAGE
----
Risk Factors.............................................................................................. 3
Where You Can Find More Information....................................................................... 11
About ProsoftTraining.com................................................................................. 13
The Offering.............................................................................................. 14
Use of Proceeds........................................................................................... 14
Selling Stockholders...................................................................................... 15
Plan of Distribution...................................................................................... 18
Experts................................................................................................... 19
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RISK FACTORS
You should carefully consider the risks described below, together with
all other information included or incorporated by reference in this prospectus,
before you decide whether to purchase shares of our common stock.
We are subject to a number of risks related to our business strategy,
our industry, our stock and this offering. We describe some of these risks
below. If any of these risks materialize, our business, financial condition and
results of operations could be harmed, the market price of our common stock
could decline, or both.
Risks Related to Our Business Strategy
We have refocused our business strategy, and our new strategy may not be
successful.
Prior to March 1998, our strategy was to deliver training in vocational
and advanced technical subjects directly to students through a nationwide
network of training centers. In March 1998, we began to close our training
center network and refocus our efforts on selling our education and
certification programs through other third party training providers and directly
to companies that wish to provide internal training to employees. It is too
early to know whether the refocusing of our business strategy will help us
achieve long-term success. Companies that implement major changes in their
business strategy can face challenging risks and unexpected difficulties.
We have relied, and expect to continue to rely, on a limited number of customers
for the majority of our revenue, and any loss of revenue or delay in receiving
revenue from these customers could harm our financial performance.
Each quarter, we derive a significant portion of our revenue from a
small number of customers, and we expect that we will continue to depend upon a
small number of customers for a significant portion of our revenue. In fiscal
2000, IBM's Software Group and Global Services Division represented 22.9% of our
revenue. If we lose IBM as a customer, or if revenue from IBM is delayed, our
operating results could suffer.
We must deliver courses and certification standards that meet the needs of our
customers or our business will suffer.
The market for Information Technology ("IT") certification, education
and training products is characterized by rapidly changing technologies,
frequent new product and service introductions and evolving industry standards.
The growth in the use of the Internet and intense competition in our industry
exacerbate these market characteristics. To be competitive, we must develop and
introduce on a timely basis course content and certification standards that meet
the needs of companies seeking to use our courseware, and certification
programs. The quality of our education programs depends in large part on our
ability to frequently update our courses and develop new content to adapt to
rapidly changing technologies and customer demands. Prior to our development of
internal expertise in a particular subject matter, we receive courseware content
from, and depend on the cooperation of, the following sources:
. training center providers, who provide us with information on the
types of courses and modes of training demanded by their
customers;
. Internet-related technologies experts, who provide us with
courseware content and updates; and
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. standards bodies such as the World Wide Web Consortium, and
industry associations such as Association of Internet
Professionals, Internet Webmasters Association and Computing
Technology Industry Association, who convene industry
participants to set standards and guidelines for IT technologies,
job roles and certification.
If we do not have internally-developed expertise in a particular
subject matter and we are unable to receive information from the sources listed
above in a timely manner, we may not be able to develop or deliver specialized
courses or updates for our customers in the time frame they are expecting. Even
if we do receive necessary information from third parties, if our employees and
consultants, upon whom we rely for instructional planning and course design
expertise, fail to complete their work in a timely manner, we will be unable to
meet customer expectations. Any prolonged delays could lead to a failure to
satisfy a customer's demands and damage our reputation.
If we are unsuccessful in increasing public recognition of our CIW brand, we may
be unable to grow our business.
We believe that establishing and maintaining favorable perception of
our CIW brand in the Internet industry, particularly among businesses seeking to
hire qualified Internet professionals, is critical to attracting and expanding
our customer base. To build our CIW brand, we must succeed in our marketing
efforts, provide high-quality services and products and achieve widespread
acceptance of our certification standards. The Internet education and
certification market is new and evolving and our long-term success is dependent
on our ability to be perceived as a leading provider. If we fail to successfully
promote and maintain our CIW brand, we may be unable to grow our business.
The variability and length of our sales cycle for our IT education and
certification programs may make our operating results unpredictable and
volatile.
The period between our initial contact with a potential customer and
the first purchase of our programs by that customer typically ranges from 3 to 9
months, and in some cases is considerably longer. Additionally, the initial
sales are often only a fraction of the potential total value of the customer
relationship, and the full sales potential may not be realized for several
years. Factors which may contribute to the variability and length of our sales
cycle include the time it takes:
. for us to educate potential customers about the benefits of our
education and certification programs;
. for our potential customers to assess the value of our
educational and certification programs;
. for our potential customers to evaluate our competitors'
educational and certification programs;
. for our potential customers to complete internal budget and
approval processes, which in many large corporations can be an
extended period; and
o for us to educate our potential customers' sales forces and
instructors.
As a result of our variable and lengthy sales cycle, we have only a limited
ability to forecast the timing and size of specific sales, which makes it
difficult to predict quarterly financial performance.
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Our business is subject to seasonal fluctuations, which may adversely affect our
revenue and operating results.
Our revenue and income vary from quarter to quarter due to seasonal and
other factors. Our course titles are organized primarily into five day courses
which are held during the span of a typical business week. Because of the
Thanksgiving, Christmas and New Year holidays that occur during the second
quarter of our fiscal year, up to four weeks during that fiscal quarter have
fewer than five business days. In the European market, August is usually a slow
month because many workers take their four week summer holiday at that time. Our
training providers are typically unable to offer our courses during those weeks,
which results in a reduction in orders for our courseware and lower royalty
payments under existing courseware licenses. As a result, we experience greater
revenue in the second half of our fiscal year, February through July, than in
the first half of our fiscal year, August through January and specifically, our
revenue will typically be lower in our second fiscal quarter than during the
rest of our fiscal year. If we fail to properly manage our financial operations
during these seasonal fluctuations, our revenue and operating results may be
adversely affected.
If we fail to manage our growth effectively, we may not be able to take
advantage of business opportunities or adequately support our existing customer
base, which would severely impact our ability to compete.
Our recent rapid growth has placed, and future anticipated growth is
likely to continue to place, a considerable strain on our managerial resources.
We plan to continue to expand our sales and marketing, administration, content
and technology development. To manage this growth effectively, we will need to
improve our financial and managerial controls and our reporting systems and
procedures. In addition, we will need to expand, train and manage our work
force. If we fail to manage our growth effectively, we will not be able to
capitalize on attractive business opportunities and may fail to adequately
support our existing customer base. Should this occur, our reputation and
competitive position could be damaged.
Our future growth depends on successful hiring and retention of skilled
personnel, and we may be unable to hire and retain the skilled personnel we
need.
The growth of our business and revenues will depend in large part upon
our ability to attract and retain sufficient numbers of highly skilled
employees, course content developers and technical, sales and marketing
personnel. Our success also depends significantly on our ability to leverage our
relationships with our CIW Authorized Training Providers, or CIW ATPs, and other
existing customers, and to increase our presence in existing and new markets,
including academic, vocation and e-learning markets. Our ability to do this
depends on our ability to increase our sales and marketing staff by recruiting,
training, motivating and managing highly skilled sales and marketing employees.
Our failure to attract and retain highly skilled course content developers and
technical, sales and marketing personnel may limit the rate at which we can grow
and may otherwise harm our business and financial performance.
We currently intend to continue to expand internationally and, as a result, we
could become subject to new risks.
We intend to continue to expand our business internationally. This will
require significant management attention and financial resources and could
subject us to new risks, including:
. little or no protection of our intellectual property rights in
some foreign countries;
. difficulties in staffing and managing international operations;
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. difficulties in developing content localized for international
jurisdictions;
. protectionist laws and business practices that favor local
competitors;
. multiple, conflicting and changing governmental laws and
regulations;
. slower adoption of industry certification;
. differences in learning styles;
. longer sales and payment cycles;
. greater difficulties in collecting accounts receivable;
. fluctuations in currency exchange rates;
. political and economic instability;
. potentially adverse tax consequences; and
. increases in tariffs, duties, price controls or other
restrictions on foreign currencies or trade barriers imposed by
foreign countries.
If we are unable to successfully enter or compete in international
markets, our growth may be slowed.
Any acquisitions that we undertake could be difficult to integrate, disrupt our
business and damage our financial performance.
We have in the past acquired and may in the future acquire or make
investments in complementary businesses, technologies, services or products if
appropriate opportunities arise. We may have trouble achieving the anticipated
benefits of these acquisitions. If we acquire a company in the future, we could
have difficulty integrating that company's personnel, operations, technology,
products or services with our business. In addition, the key personnel of the
acquired company may decide not to work for us. These difficulties could disrupt
our ongoing business, distract our management and employees, increase our
expenses and adversely affect our results of operations. Furthermore, we may
incur indebtedness or issue equity securities to pay for any future
acquisitions. The issuance of equity securities could be dilutive to our
existing stockholders.
Our inability to protect our intellectual property and proprietary rights and
our Internet domain names could lead to unauthorized use of our courseware or
certification tests and hurt our business.
Our success depends, in part, on our ability to protect our proprietary
rights and technology. We rely on a combination of copyrights, trademarks,
service marks, trade secret laws and employee and third-party nondisclosure
agreements to protect our proprietary rights. Despite our efforts to protect
these rights, unauthorized parties may attempt to duplicate or copy our
courseware, certification tests or delivery technology or obtain and use
information that we regard as proprietary. In addition, the laws of many
countries do not protect our proprietary rights to as great an extent as do the
laws of the United States. As a consequence, effective trademark, service mark,
copyright and trade secret protection may not be available in every country in
which we make our courseware available. In addition, it is possible
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that third parties could acquire trademarks or domain names that are
substantially similar or conceptually similar to our trademarks or domain names.
This could decrease the value of our trademarks or domain names and hurt our
business. The regulation of domain names in the United States and in foreign
countries is subject to change. The relationship between regulations governing
domain names and laws protecting trademarks and similar proprietary rights is
unclear. As a result, we may not be able to acquire or maintain exclusive rights
to our domain names in the United States or in other countries in which we
conduct business.
We could be subject to legal actions based upon the content we obtain from third
parties over whom we exert limited control.
It is possible that we could become subject to legal actions based upon
claims that our courseware content infringes the rights of others or is
erroneous. Any such claims, with or without merit, could subject us to costly
litigation and divert our financial resources and management personnel. If those
claims are successful, we may be required to alter our courseware content, pay
financial damages or obtain content from others.
Our products may be susceptible to claims by other companies that our products
infringe upon their copyrights or other intellectual property rights, which
could adversely affect our business and financial condition.
If any of our products violate the proprietary rights of third parties,
we may be required to modify our educational programs or to obtain licenses to
continue offering our educational programs without substantial reengineering.
Any efforts to reengineer our products or obtain licenses from third parties may
not be successful and, in any case, could have a material adverse effect on our
business and financial performance by substantially increasing our costs.
Failure to prevail in a dispute concerning our intellectual property rights
could impair our right to market our products which, in turn, could have a
material adverse effect on our business and financial results.
The continued services and leadership of senior management are critical to our
ability to maintain our growth and any loss of key personnel could adversely
affect our business.
Our future success depends to a significant degree on the skills and
efforts of our Chief Executive Officer, Jerrell M. Baird, our Chief Operating
Officer, David I. Perl, and our Chief Financial Officer, Robert Gwin, as well as
other key senior technical, sales and marketing executives. If we lose the
services of these executives or any other senior executives, and especially if
one or more of these executives joins a competitor or forms a competing company,
our business and our ability to successfully implement our business plan could
be seriously harmed.
We may require additional funding and our prospects of obtaining future funding
are uncertain.
We currently anticipate that our available cash resources will be
sufficient to meet our anticipated working capital and capital expenditure
requirements for at least the next 12 months. We may need to raise additional
funds, however, to fund more rapid expansion, to develop new courseware or
update existing courseware, to enhance existing services, to respond to
competitive pressures or to acquire complementary products, businesses or
technologies. If additional funds are raised through the issuance of equity or
convertible debt securities, the percentage ownership of our stockholders will
be reduced and the newly issued securities may have rights, preferences or
privileges senior to those of holders of our common stock. Additional financing
may not be available on terms favorable to us, or at all. If adequate funds are
not available, or are not available on acceptable terms, our ability to fund our
expansion, take
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advantage of unanticipated opportunities, develop or enhance our services or
otherwise respond to competitive pressures could be significantly limited.
Risks Related to Our Industry
Our industry is intensely competitive and we may lose market share to companies
developing similar services and products and to larger competitors with greater
resources.
Few economic barriers exist to prevent entry into our markets by new
competitors. A number of other companies offer products and services similar to
ours, and additional competitors may emerge in the near future. Our primary
certification competitors include:
. iGeneration, which offers certification and courseware;
. the trade association CompTIA, which has introduced an Internet
skills certification, called i-Net+, that competes with our CIW
Foundations certification; and
. other trade associations, including the Association of Web
Professionals, the World Organization of Webmasters and the
Internet Webmasters Association, each of which has either
released or announced plans to offer Internet skills
certifications.
We not only face competition from companies offering similar services
and products, but from internal training units of large corporations as well.
Many of our existing competitors have substantially greater capital resources,
technical expertise, marketing experience, research and development status,
established customers and facilities than we do. These companies represent a
significant competitive challenge to our education and certification programs
and require us to spend more money on sales, marketing and courseware
development to successfully compete.
In addition, as competition continues to intensify, we expect the
Internet education and certification market to undergo significant price
competition and we expect to face increasing price pressures from customers. As
a result, if we are not able to successfully compete with existing and future
competitors, our financial performance would be materially adversely affected.
Because IT skills training products and services may not be viewed by companies
as essential to their business, demand for our products may be especially
susceptible to adverse economic conditions.
Our business and financial performance may be damaged by adverse
financial conditions affecting our target customers or by a general weakening of
the economy. Some companies may not view IT training or certification as
critical to the success of their business. If these companies experience
disappointing operating results, whether as a result of adverse economic
conditions, competitive issues or other factors, they may decrease or forego
education and certification expenditures before limiting their other
expenditures.
If Internet usage fails to grow or declines, or if commerce conducted over the
Internet is not accepted by consumers and businesses, our future sales and
profits may be adversely affected.
Our business depends on the continued growth and acceptance of the
Internet by our customers, students and students' employers. A number of factors
may inhibit Internet usage, including inadequate network infrastructure,
security concerns, and inconsistent quality of service and lack of availability
of cost-effective, high-speed service. As Internet usage grows, the
communications infrastructure may not
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be able to support the demands placed on it by this growth and its performance
and reliability may decline. In addition, Internet sites have experienced
interruptions in their service as a result of outages and other delays occurring
throughout the Internet network infrastructure. If these outages or delays
frequently occur in the future, Internet usage could grow more slowly or
decline. In this event, our Internet education and certification programs would
be less attractive and our business and future growth prospects would be
impaired.
Future regulation of the Internet could reduce the value of our Internet
education and certification programs.
Future regulation of the Internet could reduce the value of Internet
education and certification programs. Federal and state laws governing the
Internet remain largely unsettled and regulations that apply to the Internet may
become more prevalent in the future. New laws could dampen the growth in use of
the Internet generally and decrease the acceptance of the Internet as a
commercial medium. In addition, existing laws such as those governing
intellectual property and privacy may be interpreted to apply to the Internet.
In 1998, the federal government enacted a three-year moratorium prohibiting
states and local governments from imposing new taxes on electronic commerce
transactions. Upon expiration of this moratorium, if it is not extended, states
or other governments might levy sales or use taxes on electronic commerce
transactions. An increase in the taxation of electronic commerce transactions
might make the Internet a less attractive medium for commercial transactions.
The governments of foreign countries may also attempt to regulate the Internet
and electronic commerce.
Risks that Relate to Our Stock and this Offering
Our quarterly operating results will vary, which may affect the market price of
our common stock in a manner unrelated to our long-term performance.
Our operating results have varied from quarter to quarter in the past
and are likely to vary significantly in the future. As a result, our operating
results may be below the expectations of public market analysts or investors,
causing the market price of our common stock to decline significantly. In
addition to the factors identified above, some of the factors that may influence
the volatility of our operating results include:
. seasonal fluctuations in revenue; and
. unexpected costs and delays relating to the expansion of
operations, including acquisitions of new courseware content in
response to changing technology and evolving standards.
Due to these factors, revenue and operating results for the foreseeable
future are difficult to forecast and you should not rely on period-to-period
comparisons of results of operations as an indication of our future performance.
Our current and future expense estimates are largely fixed and based, to a
significant degree, on our estimates of future revenue. We will likely be unable
to, or may elect not to, reduce spending quickly enough to offset any unexpected
revenue shortfall.
Any quarterly shortfall in revenue or earnings from expected levels, or
other short-term failures to meet the expectations of securities analysts or the
market in general, can have an immediate and damaging effect on the market price
of our common stock.
9
Our common stock may experience extreme price and volume fluctuations.
The stock market, from time to time, has experienced extreme price and
volume fluctuations. The market prices of the securities of IT related companies
have been especially volatile, including fluctuations that often are unrelated
to the operating performance of the affected companies. Broad market
fluctuations of this type may adversely affect the market price of our common
stock.
The market price of our common stock has fluctuated since we became a
public company. Our stock price could continue to fluctuate significantly due to
a variety of factors, including:
. public announcements concerning us, our competitors or our industry;
. fluctuations in our operating results;
. introductions of new education or certification programs by us or our
competitors;
. identification of formal certification standards and changes thereto;
. changes in equity research analysts' revenue or earnings estimates; and
. announcements of technological innovations.
In the past, companies that have experienced volatility in the market price
of their stock have been the target of securities class action litigation. If we
were sued in a securities class action, our management's attention and resources
would be diverted and we would incur substantial costs.
Anti-takeover provisions under Nevada law and in our Bylaws and stockholders'
rights plan could delay or deter tender offers or takeover attempts, which could
adversely affect the market price of our common stock.
Our Bylaws contain certain provisions that may discourage other persons
from attempting to acquire control of us. These provisions include, but are not
limited to:
. A staggered Board of Directors.
. The elimination of the right of stockholders to act by written consent
without a meeting, except unanimously.
. The establishment of advance notice requirements for director
nominations and actions to be taken at annual meetings.
Such provisions, as well as the anti-takeover provisions of Sections 78.411
through 78.444 of the Nevada Revised Statutes and the existence of our
stockholders' rights plan, could impede a merger, consolidation, takeover or
other business combination involving us or discourage a potential acquirer from
making a tender offer or otherwise attempting to take control of us. In certain
circumstances, the fact that corporate devices are in place that will inhibit or
discourage takeover attempts could reduce the market value of our Common Stock.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by reference in this
Prospectus, contains forward-looking statements that involve substantial risks
and uncertainties. You can identify these statements by forward-looking words
such as "may," "will," "expect," "intend," "anticipate," "believe,"
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"estimate" and "continue" or other similar words. You should read statements
that contain these words carefully because they discuss our future expectations,
contain projections of our future results of operations or of our financial
condition or state other forward-looking information. We believe that it is
important to communicate our future expectations to our investors. However,
there may be events in the future that we are not able to accurately predict or
control. The factors listed in the section captioned "Risk Factors", as well as
any cautionary language in this prospectus, or in documents incorporated by
reference in this prospectus, provide examples of risks, uncertainties and
events that may cause our actual results to differ materially from the
expectations we describe in our forward-looking statements. Before you invest in
our common stock, you should be aware that the occurrence of the events
described in the "Risk Factors" section and elsewhere in this prospectus could
have a material adverse effect on our business, operating results and financial
condition.
WHERE YOU CAN FIND MORE INFORMATION
Federal securities law requires us to file information with the SEC
concerning our business and operations. We file annual, quarterly and special
reports, proxy statements and other information with the SEC. You can read and
copy these documents at the public reference facility maintained by the SEC at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549. You
can also copy and inspect such reports, proxy statements and other information
at the following regional offices of the SEC:
New York Regional Office Chicago Regional Office
7 World Trade Center Citicorp Center
Suite 1300 500 West Madison Street
New York, NY 10048 Suite 1400
Chicago, IL 60661
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public on the SEC's
web site at http://www.sec.gov. You can also inspect our reports, proxy
statements and other information at the offices of the Nasdaq Stock Market.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information that we incorporate by
reference is considered to be part of this Prospectus, and later information
that we file with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below (File No.
000-21535) and any future filings made with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934:
. Annual Report on Form 10-K for the fiscal year ended July 31, 2000
(including information specifically incorporated by reference into our
Form 10-K from our Proxy Statement for our 2000 Annual Meeting of
Stockholders);
. Quarterly Reports on Form 10-Q for the quarters ended October 31, 2000,
January 31, 2001 and April 30, 2001;
. Current Reports on Form 8-K dated April 17, 2001 and June 28, 2001;
. The description of our Common Stock contained in the Registration
Statement on Form 8-A dated October 11, 1996 and the description of the
common share purchase rights attached to our Common Stock contained in
the Registration Statement on Form 8-A dated June 28, 2001.
11
This Prospectus is part of eight Registration Statements we filed with the
SEC (Nos. 333-11247, 333-28993, 333-35249, 333-30336, 333-40982, 333-53000, 33-
57764 and 333-_____). You may request a free copy of any of the above filings by
writing or calling:
Investor Relations
ProsoftTraining.com
3001 Bee Caves Rd., Suite 300
Austin, TX 78746
Phone (512) 225-5753
You should rely only on the information incorporated by reference or
provided in this Prospectus or any supplement to this Prospectus. We have not
authorized anyone else to provide you with different information. The Selling
Stockholders should not make an offer of these Shares in any state where the
offer is not permitted. You should not assume that the information in this
Prospectus or any supplement to this Prospectus is accurate as of any date other
than the date on the cover page of this Prospectus or any supplement.
12
ABOUT PROSOFTTRAINING.COM
We are a leading provider of professional information technology skills
content, training and certification. We sell and license our courseware, offer
instruction services, and provide technology skills certification through our
brand, CIW and CCNT, to training companies, internal corporate training
departments and academic institutions around the world. Our products allow
individuals to develop, upgrade and certify their information technology skills.
Our Internet courses, which are organized around job-role
certifications are vendor-neutral, encompass a wide range of topics, including
internetworking, web site design, e-commerce security and Java. We believe
vendor-neutrality is important, as the Internet is comprised of multiple
hardware and software providers with which Internet professionals must be
familiar. As core Internet technologies continue to evolve, we intend to
leverage our content development capability to ensure that we meet the needs of
our customers. Our content is available in multiple delivery formats, including
traditional classroom settings offered by our CIW Authorized Training Providers,
or CIW ATPs, as well as customized courseware, CD-ROM, Web-based training and
distance learning through our CIW2Go program.
Our principal executive offices are located at 3001 Bee Caves Road,
Suite 300, Austin, Texas 78746, and our telephone number is (512) 328-6140. Our
Web site is located at www.prosofttraining.com. Information contained on our Web
site is not a part of this prospectus.
Our predecessor entity, Professional Development Institute was formed
as a sole proprietorship on February 1, 1995. On December 8, 1995, Pro-Soft
Development Corp. was incorporated in California, and effective January 1, 1996,
Professional Development Institute contributed its assets and liabilities to
Pro-Soft Development Corp. in exchange for shares of Pro-Soft Development Corp.
common stock. In March 1996, Pro-Soft Development Corp. became a wholly-owned
subsidiary of Tel-Fed, Inc., a Nevada corporation, through a reverse merger and
Tel-Fed, Inc. changed its name to Prosoft Development, Inc. In October 1996,
Prosoft Development, Inc. changed its name to Prosoft I-Net Solutions, Inc. In
January 1999, Prosoft I-Net Solutions changed its name to ProsoftTraining.com.
13
THE OFFERING
Common Stock Offered by the Selling Stockholders....... 6,209,961 shares(1)
Common Stock to be outstanding after this Offering..... 24,782,057 shares(1)(2)
Use of Proceeds........................................ Other than the exercise
price of the common
stock purchase warrants
("Warrants") which are
exercisable, we will
receive none of the
proceeds from the sale
of shares by the
Selling Stockholders.
We would receive gross
proceeds of $8,131,922
if all of the Warrants
are exercised. Any
proceeds we receive
will be utilized for
working capital and
general corporate
purposes.
NASDAQ National Market System Symbol................... POSO
(1) Includes 1,279,426 shares issuable upon exercise of the Warrants.
(2) Doesnot include 3,020,209 shares reserved for issuance upon the exercise
of outstanding stock options.
USE OF PROCEEDS
Other than the exercise price of such of the Warrants as may be exercised,
we will not receive any proceeds from the sale of Shares by the Selling
Stockholders. Holders of the Warrants are not obligated to exercise their
Warrants, and there can be no assurance that they will choose to exercise all or
any of their Warrants. The gross proceeds to us in the event that all of the
Warrants are exercised would be $8,131,922. Proceeds we receive, if any, will be
utilized for working capital and general corporate purposes.
14
SELLING STOCKHOLDERS
All of the Shares offered by this Prospectus are being offered by the
Selling Stockholders for their own respective accounts. Substantially all of the
Selling Stockholders purchased their Shares in private placement investments in
us, which we believe were exempt from the registration requirements of federal
securities law under the Regulation D private placement exemption. The following
table sets forth certain information as of June 20, 2001, with respect to the
Selling Stockholders:
Share
Beneficially Shares Shares
Owned Covered Beneficially Owned
Prior to By after the
Name of Selling Stockholder Offering Prospectus Offering(1)
--------------------------- -------- ---------- -----------
AGAPE International Center of Truth 1,000 1,000 0
Alaimo, Janet 2,000 2,000 0
Anderson, Erik T. 750 750 0
Banc of America Capital Management Funds I Small Cap
Growth Fund 3,500 3,500 0
Baird, Jerrell M. (2) 427,054 20,000 407,054(3)
Bear Stearns FBO Christopher J. Platt IRA 1,000 1,000 0
Bear Stearns FBO Ruth Stallman IRA 2,000 2,000 0
Broberg, Adele 1,294 862 432(4)
Broberg, Alice 1,294 862 432(4)
Broberg, Carol 1,294 862 432(4)
Broberg, Frederick 1,294 862 432(4)
Broberg, Hayden 1,294 862 432(4)
Broberg, Orrin 81,790 54,526 27,264(4)
Broberg, Virginia 27,243 18,162 9,081(4)
Burton, Jim 677 452 225(4)
Charles Schwab and Company FBO Matthew Linsey 15,000 15,000 0
Clark Fork Medical Assn. Trust 10,891 10,891 0
Common Sense Partners 159,301 57,500 101,801(4)
Corbin, Brooks A. (5) 2,333 2,333 0
D'Ambrosio, Louis J. 57,228 25,000 32,228(4)
Danks, Don (6) 4,000 4,000 0
Davis, Gart D. 2,680 2,680 0
Dowling, Benjamin 300 300 0
Drake Personnel (New Zealand) Limited 1,542,422 1,161,615 380,807(7)
Eagle Growth Limited Partnership 228,906 100,000 128,906(4)
Ebbets Field International, Ltd. 153,749 153,749 0
F&S Partnership 15,000 15,000 0
Fidelity Management Trust Co. FBO John Ryan IRA 16,775 16,775 0
Fleming, David 5,000 5,000 0
Fliege, James Ritchie 13,614 13,614 0
Franklin, William I. 43,000 25,000 18,000(4)
Freadhoff, Keith (8) 1,000 1,000 0
15
Fuller, J. William (9) 21,641 20,641 1,000(4)
Geren, Preston M. III, Trustee 78,422 25,000 53,422(4)
Gladstein, Gary 32,228 20,000 12,228(4)
Gorman, Chuck 13,146 8,764 4,382(4)
Grafstein, Casey Marsha 5,000 5,000 0
Gramm, Colton 1,000 1,000 0
Harbor Growth Fund 110,000 110,000 0
Harold, Thomas 1,692 1,128 564(4)
Harrison, Jody 8,066 5,378 2,688(4)
Hunt Capital Growth Fund II, L.P. (10) 1,629,220 1,629,220 0
International Webmaster Association 15,500 15,500 0
International Direct Marketing Consultants 33,549 33,549 0
Investor Contacts Ltd. 377,650 377,650 0
Investment Transaction 58,500 58,500 0
Ketcher, Frederick 26,509 26,509 0
Kesselring, William 64,300 7,500 56,800(4)
Khaled, Michael E. 25,000 25,000 0
King, Bradley J. 6,188 6,188 0
Kopor, Betsy 500 500 0
Langberg, Leslie 10,405 10,405 0
Leese, Dennis 10,786 7,190 3,596(4)
Lexington Venture Capital LLC 40,000 40,000 0
McHugh, Patrick 9,996 9,996 0
Mills, John L. 12,932 8,622 4,310(4)
Montesi, Terry 35,385 35,385 0
Nations Small Company Fund 105,300 105,300 0
Owens Illinois 70,000 70,000 0
Pabrai, Uday Om (11) 77,862 77,862 0
Pelleg, Ron 1,000 1,000 0
Peninsula Fund L.P. 250,000 250,000 0
Quota Rabbico N.V.-Shapiro 96,626 96,626 0
Richardson, William E. (12) 25,000 25,000 0
Ropar LLC 100,000 100,000 0
Rosen, Harvey 50,000 50,000 0
Ruenitz & Associates 17,500 17,500 0
Schmidt, Eric 3,000 3,000 0
Schmidt Family Trust 10,000 10,000 0
Schultz Construction 5,000 5,000 0
Service Master Venture Fund, LLC 38,995 38,995 0
Service Master Foundation 15,965 15,965 0
Shannon Free Airport Development Company Ltd. 90,750 90,750 0
Shannon Ventures Ltd. 12,500 12,500 0
Shapiro, Steven 22,885 22,885 0
Skowyra, Ray 1,694 1,130 564(4)
Small Cap Equity Fund 8,000 8,000 0
16
Stallman, Andrew (13) 48,500 15,000 33,500(4)
Steward Insurance Company 415,754 203,751 212,003(4)
Suleiman, Anver 9,278 6,700 2,578(4)
Suleiman, John 4,192 1,900 2,292(4)
Trimble, Kelly 371 371 0
Trinity Executive Recruiters 8,750 8,750 0
Turnbow Investment Co. L.C. 5,724 5,724 0
Turnbow, Cary 2,845 2,845 0
Turnbow, Jamie 2,879 2,879 0
Turnbow, Lynn 123,846 123,846 0
T. Rowe Price New Horizons Fund 1,175,000 500,000 675,000(14)
Underwood, Gerald B. 5,000 5,000 0
Underwood, Kevin 2,000 2,000 0
Vanderhoof, Michael D. 129,454 50,000 79,454(4)
VanZandt, Gloria 7,000 7,000 0
Wilen, Sylvia 10,700 10,700 0
Williams, David R. 10,000 2,000 8,000(4)
Williams, Kelly 1,000 1,000 0
World Horizon Aggressive Growth Fund 3,200 3,200 0
WWW Internet Fund 164,454 50,000 114,454(4)
----------- --------------- --------------
8,584,322(15) 6,209,961(16) 2,374,361
=========== =============== ==============
(1) Assumes that each Selling Stockholder sells all of the Shares to which
this Prospectus relates.
(2) Mr. Baird is Chairman of the Board and Chief Executive Officer of the
Company.
(3) Represents 1.7% of our shares after this offering.
(4) Represents less than 1% of our shares after this offering.
(5) Mr. Corbin is a former officer of the Company.
(6) Mr. Danks is a former officer and Director of the Company.
(7) Represents 1.6% of our shares after this offering.
(8) Mr. Freadhoff is a former officer and Director of the Company.
(9) Mr. Fuller is a Director of the Company.
(10) J.R. Holland is a Director of the Company, and President and Chief
Executive Officer of Unity Hunt, Inc., an affiliate of Hunt Capital
Growth Fund II, L.P.
(11) Mr. Pabrai is a former officer and Director of the Company.
(12) Mr. Richardson is a former Director of the Company.
(13) Mr. Stallman is a former Director of the Company.
(14) Represents 2.9% of our shares after this offering.
(15) Includes 300,000 shares subject to currently exercisable options and
1,279,426 shares subject to currently exercisable warrants of the
Company.
(16) Includes 1,279,426 shares subject to currently exercisable warrants.
17
PLAN OF DISTRIBUTION
We are registering the Shares on behalf of the Selling Stockholders. As
used in this Prospectus, the term "Selling Stockholder" includes donees,
pledges, transferees or other successors-in-interest selling Shares received as
a gift, pledge, partnership distribution or other non-sale related transfer
after the date of this Prospectus from a named Selling Stockholder. All costs,
expenses and fees in connection with the registration of the Shares offered
hereby will be borne by us. The Selling Stockholders will pay any brokerage
commissions or similar selling expenses attributable to the sale of the Shares.
The Selling Stockholders may effect sales of Shares from time to time in one or
more types of transactions (which may include block transactions) on the Nasdaq
National Market System, in negotiated transactions, through put or call options
transactions relating to the Shares, through short sales of Shares, or a
combination of such methods of sale, at market prices prevailing at the time of
sale, or at negotiated prices. These transactions may involve brokers or
dealers.
The Selling Stockholders may effect such transactions by selling Shares
directly to purchasers or to or through broker-dealers, which may act as agents
or principals. Such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholders or the
purchasers of the Shares for whom such broker-dealers may act as agents or to
whom they sell as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
The Selling Stockholders and any broker-dealers that act in connection
with the sale of Shares might be deemed to be "underwriters" within the meaning
of Section 2(11) of the Securities Act of 1933 (the "Securities Act"), and any
commissions received by such broker-dealers and any profit on the resale of the
Shares sold by them while acting as principals might be deemed to be
underwriting discounts or commissions under the Securities Act. We have agreed
to indemnify each Selling Stockholder against certain liabilities, including
liabilities arising under the Securities Act. The Selling Stockholders may agree
to indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of the Shares against certain liabilities,
including liabilities arising under the Securities Act.
The Selling Stockholders will be subject to the prospectus delivery
requirements of the Securities Act because they may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act. We
have informed the Selling Stockholders that the anti-manipulative provisions of
Regulation M promulgated under the Securities Exchange Act of 1934 may apply to
their sales in the market.
Selling Stockholders also may resell all or a portion of the Shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of Rule 144.
Upon notification to us by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
Prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealers, (ii) the number of Shares involved, (iii) the
price at which such Shares were sold, (iv) the commissions paid or discounts or
concessions allowed to such broker-dealers, where applicable, (v) that such
broker-dealers did not conduct any investigation to verify the information set
out or incorporated by reference in this Prospectus and (vi) other facts
material to the transaction. In addition, upon notification to us by a Selling
Stockholder that a donee, pledgee, transferee or other successor-in-interest
intends to sell more than 500 Shares, a supplement to this Prospectus will be
filed.
18
EXPERTS
Our consolidated financial statements as of July 31, 2000 and 1999 and
for each of the three years in the period ended July 31, 2000 incorporated by
reference in this prospectus have been audited by Grant Thornton LLP,
independent auditors, as stated in their report incorporated by reference in
this prospectus, and have been so incorporated in reliance on Grant Thornton
LLP's report, given on their authority as experts in accounting and auditing.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered. All of the amounts
shown are estimates, except the Securities and Exchange Commission registration
and Nasdaq filing fees.
Securities and Exchange Commission registration fee....................... $ 205.24
FAccounting fees and expenses............................................. $ 1,500.00
Other legal fees and legal expenses....................................... $ 3,500.00
Miscellaneous expenses.................................................... $ 1,000.00
------------
Total........................................................... $ 6,205.24
============
Item 15. Indemnification of Directors and Officers.
Nevada law provides that a corporation may indemnify any person who was
or is a party or is threatened to be made a party, by reason of the fact that he
or she was an officer or director of such corporation, or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, to
(x) any threatened, pending or completed action or suit by or in the right of
the corporation against expenses, including amounts paid in settlement and
attorneys' fees, actually and reasonably incurred by him or her, in connection
with the defense or settlement of the action or suit if he or she acted in good
faith and in a manner which he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that indemnification
may not be made for any claim, issue or matter as to which he or she 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 that the court in which the
action or suit was brought or other 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, and (y) any other threatened, pending or completed action, suit or
proceeding against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him or her in
connection with the action, suit or proceeding, if he or she acted in good faith
and in a manner which he or she 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 or her conduct was
unlawful. To the extent that a director, officer, employee or agent has been
successful on the merits or otherwise in defense of any such action, suit or
proceeding or in defense of any claim, issue or matter therein, the corporation
must indemnify him or her against expenses, including attorneys' fees, actually
and reasonably incurred by him or her in connection with the defense. The
articles of incorporation, bylaws or an agreement made by the corporation may
provide that the expenses of officers and directors incurred in defending any
such action must be paid as incurred and in advance of the final disposition of
such action, upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he or she is not entitled to be indemnified by the
corporation. Nevada law also permits the corporation to purchase and maintain
insurance on behalf of the corporation's directors and officers against any
liability arising out of their status as such, whether or not
II-1
the corporation would have the power to indemnify him against such liability.
These provisions may be sufficiently broad to indemnify such persons for
liabilities arising under the Securities Act.
Our amended and restated articles of incorporation provide that we
shall indemnify any of our directors or officers in connection with certain
actions, suits or proceedings, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to our best interests, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. Our amended and
restated articles of incorporation also provide that none of our officers or
directors shall be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duties as an officer or director, provided that
such provision does not eliminate or limit the liability of a director or
officer to the extent provided by applicable law for (a) acts or omissions that
involve intentional misconduct, fraud or a knowing violation of law, or (b)
authorizing the payment of illegal dividends or distributions.
Our bylaws generally require us to indemnify, as well as to advance
expenses, to our directors and officers to the fullest extent permitted by
Nevada law upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it should ultimately be determined that they are
not entitled to indemnification by us.
We maintain liability insurance for our directors and officers
covering, subject to certain exceptions, any actual or alleged negligent act,
error, omission, misstatement, misleading statement, neglect or breach of duty
by such directors or officers, individually or collectively, in the discharge of
their duties in their capacity as directors or officers of our company.
II-2
Item 16. Exhibits and Financial Statement Schedules.
EXHIBIT INDEX
Exhibit
No. Description of Exhibits
--- -----------------------
2 Agreement and Plan of Reorganization dated March 26, 1996 between the
Company, Pro-Soft Development Corp. and the shareholders of Pro-Soft
Development Corp. Filed as Exhibit 2 to the Company's Registration
Statement on Form S-1 (No. 333-11247) ("Registration Statement No. 333-
11247") and incorporated herein by reference.
3.1 Restated Articles of Incorporation of the Company, as amended. Filed as
Exhibit 3.1 to Registration Statement No. 333-53000 and incorporated
herein by reference.
3.2 Amended and Restated Bylaws of the Company. Filed as Exhibit 3.2 to
Registration Statement No. 333-11247 and incorporated herein by
reference.
4.1 Specimen Stock Certificate. Filed as Exhibit 4 to Registration Statement
No. 333-11247 and incorporated herein by reference.
4.2 Rights Agreement dated as of June 27, 2001, between the Company and
Interwest Transfer Company, Inc., which includes the form of Right
Certificate as Exhibit A and the Summary of Rights as Exhibit B. Filed as
Exhibit 4.1 to the Company's Current Report on Form 8-K dated June 28,
2001 (the "June 2001 Form 8-K") and incorporated herein by reference.
5.1 Legal Opinion of Jeffrey Korn.
10.1 Pro-Soft Development Corp. 1996 Stock Option Plan. Filed as Exhibit 10.1
to Registration Statement No. 333-11247 and incorporated herein by
reference.
10.2 ProSoft I-Net Solutions, Inc. Amended 1996 Stock Option Plan. Filed as
Exhibit 10.2 to Registration Statement No. 333-35249 and incorporated
herein by reference.
10.3 Form of Indemnification Agreement between the Company and its Directors
and Officers. Filed as Exhibit 10.13 to Registration Statement No. 333-
11247 and incorporated herein by reference.
10.4 Registration Rights Agreement dated as of December 2, 1998 among the
Company and various investors. Filed as Exhibit 10.20 to Registration
Statement No. 333-35249 and incorporated herein by reference.
10.5 Accounts Receivable Purchase Agreement dated as of November 6, 1998 by
and between the Company and Silicon Valley Financial Services (a division
of Silicon Valley Bank). Filed as Exhibit 10.4 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended January 31, 1999 and
incorporated herein by reference.
10.6 Employment Agreement dated February 1, 2000 between the Company and David
I. Perl. Filed as Exhibit 10.1 to the Company's Quarterly Report on Form
10-Q for the quarterly period ended April 30, 2000 and incorporated
herein by reference.
10.7 Employment Agreement dated February 1, 2000 between the Company and
Jerrell M. Baird. Filed as Exhibit 10.2 to the Company's Quarterly Report
on Form 10-Q for the quarterly period ended April 30, 2000 and
incorporated herein by reference.
10.8 Securities Purchase Agreement dated as of November 22, 1999 among the
Company and Hunt Capital Growth Fund, II L.P. Filed as Exhibit 10.1 to
the Company's Quarterly Report on Form 10-Q for the quarterly period
ended October 31, 1999 and incorporated herein by reference.
10.9 Registration Rights Agreement dated as of November 22, 1999 among the
Company and Hunt Capital Growth Fund, II L.P. Filed as Exhibit 10.2 to
the Company's Quarterly Report on Form 10-Q for the quarterly period
ended October 31, 1999 and incorporated herein by reference.
10.10 Warrant Agreement dated as of November 22, 1999 among the Company and
Hunt Capital Growth Fund, II L.P. Filed as Exhibit 10.3 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended October 31,
1999 and incorporated herein by reference.
10.11 Stock Purchase Agreement dated as of June 27, 2000 by and among the
Company, Drake Personnel (New Zealand) Limited and ComputerPREP, Inc.
Filed as Exhibit 2.1 to the Company's Current Report on Form 8-K dated
June 27, 2000 and incorporated herein by reference.
II-3
10.12 Registration Rights Agreement dated as of June 27, 2000 by and among the
Company and Drake Personnel (New Zealand) Limited. Filed as Exhibit 10.1
to the Company's Current Report on Form 8-K dated June 27, 2000 and
incorporated herein by reference.
10.13 Common Stock Purchase Warrant dated June 27, 2000 to purchase 300,000
shares issued to Drake. Filed as Exhibit 10.2 to the Company's Current
Report on Form 8-K dated June 27, 2000 and incorporated herein by
reference.
10.14 Common Stock Purchase Warrant dated June 27, 2000 to purchase 300,000
shares issued to Drake. Filed as Exhibit 10.3 to the Company's Current
Report on Form 8-K dated June 27, 2000 and incorporated herein by
reference.
10.15 Securities Purchase Agreement dated June 27, 2000 by and among the
Company and various investors. Filed as Exhibit 10.4 to the Company's
Current Report on Form 8-K dated June 27, 2000 and incorporated herein
by reference.
10.16 Registration Rights Agreement dated June 27, 2000 by and among the
Company and various investors. Filed as Exhibit 10.5 to the Company's
Current Report on Form 8-K dated June 27, 2000 and incorporated herein
by reference.
10.17 Employment Agreement dated July 17, 2000 between the Company and Robert
S. Gwin. Filed as Exhibit 10.25 to the Company's Annual Report on Form
10-K dated October 25, 2000 and incorporated herein by reference.
10.18 Employment Agreement dated April 21, 2000 between the Company and
Jeffrey Korn. Filed as Exhibit 10.1 to the Company's Quarterly Report on
Form 10-Q for the quarterly period ended January 31, 2001 and
incorporated herein by reference.
10.19 Prosofttraining.com 2000 Stock Incentive Plan. Filed as Exhibit 99.1 to
the Company's Registration Statement on Form S-8 (333-51360) and
incorporated herein by reference.
10.20 Prosofttraining.com 2000 Employee Stock Purchase Plan. Filed as Exhibit
99.2 to the Company's Registration Statement on Form S-8 (333-51360) and
incorporated herein by reference.
21 Subsidiaries of the Company. Filed as Exhibit 21 to Registration
Statement No. 333-53000 and incorporated herein by reference.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Jeffrey Korn (included in the opinion filed as Exhibit 5.1).
24 Power of Attorney. (See page II-7).
II-4
Item 17. Undertakings.
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 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) (230.424(b) of this
Chapter) 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; and
(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.
Insofar as indemnification for liabilities arising from the Securities
Act of 1933 (the "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 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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Austin,
State of Texas on the 26th day of June 2001.
PROSOFTTRAINING.COM
By: /s/ Jerrell M. Baird
-------------------------------
Jerrell M. Baird,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints Jerrell M. Baird and William J.
Weronick, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution, 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 this registration statement, and to sign any registration
statement for the same offering covered by this registration statement that is
to be effective upon filing pursuant to Rule 462(b) promulgated under the
Securities Act of 1933, and all post-effective amendments thereto, and to file
the same, with all exhibits thereto and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents 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, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or his or their substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated below on June 26, 2001:
Signature Title
/s/ Jerrell M. Baird Chief Executive Officer and Chairman of the Board
- --------------------------
Jerrell M. Baird (Principal Executive Officer)
/s/ Robert G. Gwin Chief Financial Officer (Principal Financial and
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Robert G. Gwin Accounting Officer)
/s/ J. William Fuller Director
- --------------------------
J. William Fuller
/s/ J.R. Holland, Jr. Director
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J.R. Holland, Jr.
II-6
/s/ Jeffrey G. Korn Director and General Counsel
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Jeffrey G. Korn
/s/ Charles McCusker Director
- --------------------------
Charles McCusker
/s/ Dr. Edward Walsh Director
- --------------------------
Dr. Edward Walsh
II-7