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As filed with the Securities and Exchange Commission
on September 6, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PLATO LEARNING, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3660532
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10801 Nesbitt Avenue South
Bloomington, Minnesota 55437
(952) 832-1000
(Address, including ZIP code, and telephone number, including area code,
of registrant's principal executive offices)
PLATO LEARNING, INC.
2000 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full title of plan)
John Murray Copy to:
President, Chief Operating Officer Leland E. Hutchinson, Esq.
and Acting Chief Financial Officer Winston & Strawn
10801 Nesbitt Avenue South 35 West Wacker Drive
Bloomington, Minnesota 55437 Chicago, Illinois 60601
(952) 832-1000 (312) 558-7336
(Name, address, including ZIP
code, and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of securities to be Amount to be Proposed
registered registered maximum offering Proposed maximum Amount of
price per share aggregate offering registration fee
(1) price (1)
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Common Stock, par value 200,000 $13.4687 $2,693,740 $711.15
$.01 per share
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(1) Calculated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, based upon the average of the high and low prices of the
common stock, par value $.01 per share, of PLATO Learning, Inc. on the
Nasdaq National Market as of closing on August 30, 2000.
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PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participant non-employee directors as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
These documents and the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act. You may request a copy of these filings at
no cost by writing or telephoning us at the following address: PLATO Learning,
Inc., 10801 Nesbitt Avenue South, Bloomington, Minnesota 55437, Attention:
Treasurer, Telephone: (952) 832-1000.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by PLATO Learning, Inc. (the "Company")
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1999 (file no. 333-72523);
(b) the Company's Quarterly Reports on Form 10-Q for the
quarters January 31, 2000 and April 30, 2000 (file no. 333-72523); and
(c) the description of the Company's common stock, par value
$.01 per share (the "Common Stock"), which is contained in the registration
statement on Form 8-A filed with the Commission on November 12, 1992 under the
Exchange Act, including any subsequent amendment or any report filed for the
purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold are deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates of filing of such documents (such documents and
the documents enumerated above, the "Incorporated Documents").
Any statement in an Incorporated Document 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 Incorporated
Document modifies or supercedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified and superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated under the laws of the State of
Delaware. Section 145 of the Delaware Law ("Section 145") provides that a
Delaware corporation may indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer, director, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action or proceeding, if he
acted in good faith and in a manner he reasonably believed to be in or not
appeared to the best interests of the corporation, and, with respect to any
criminal action, had no reasonable cause to believe that this his conduct was
illegal. A Delaware corporation may indemnify any persons who are, or are
threatened to be made, a party to any threatened, pending or completed action or
suit by or in the right of the corporation by reason of the fact that such
person was a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include defense or settlement of such action or
suit, provided such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests except that
no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred.
The Company's Bylaws provide for the indemnification of directors
and officers of the Company to the fullest extent permitted by Delaware law. The
Company has entered into indemnification agreements with its directors and
executive officers which provide indemnification to the full extent permitted by
the Company's By-Laws. Such agreements also provide for the advancement to
indemnified persons of litigation costs and expenses.
The Company's Certificate of Incorporation provides that to the
fullest extent permitted by the Delaware Law, a director of the Company shall
not be liable to the Company or its stockholders for a breach of fiduciary duty
as a director.
The Company maintains directors' and officers' liability insurance
which insures the directors and officers of the Company and its subsidiaries
against damages, judgments, settlements and costs incurred by reason of certain
acts committed by such persons in their capacities as officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description of Exhibit Page
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4.01 Certificate of Incorporation of the Company (filed
as Exhibit 3.01 to the Company's Annual Report on
Form 10-K filed with the Commission on January 27,
1997, as amended (the "Annual Report"), and hereby
incorporated by reference)
*4.02 Amended and Restated By-laws of the Company
*4.03 Form of PLATO Learning, Inc. 2000 Non-Employee Directors Stock
Option Plan
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*5.01 Opinion of Winston & Strawn as to the legality of the
securities being registered
*23.01 Consent of Winston & Strawn (included in its opinion filed as
Exhibit 5.01)
*23.02 Consent of PricewaterhouseCoopers LLP
24.01 Powers of Attorney (included on signature page)
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* Filed herewith.
ITEM 9. UNDERTAKINGS
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (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 in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or
any material change to such information in the Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company'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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized, in the City of Bloomington, State of Minnesota, on September 6,
2000.
PLATO LEARNING, INC.
By: /s/ William R. Roach
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William R. Roach
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
The undersigned directors and executive officers of PLATO Learning,
Inc. do hereby constitute and appoint John Murray and Mary Jo Murphy, and each
of them, with full power of substitution, our true and lawful attorneys-in-fact
and agents to do any and all acts and things in our name and behalf in our
capacities as directors and officers, and to execute any and all instruments for
us and in our names in the capacities indicated below which such person may deem
necessary or advisable to enable PLATO Learning, Inc. to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission, in
connection with this Registration Statement, including specifically, but not
limited to, power and authority to sign for us, or any of us, in the capacities
indicated below, any and all amendments (including pre-effective and
post-effective amendments) hereto; and we do hereby ratify and confirm all that
such person or persons shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on September 6, 2000.
Signature Title
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/s/ William R. Roach
- -------------------------------------------- Chairman of the Board, and
William R. Roach Chief Executive Officer
/s/ John Murray
- -------------------------------------------- President, Chief Operating Officer, Acting
John Murray Chief Financial Officer and Director
/s/ Mary Jo Murphy
- -------------------------------------------- Vice President, Corporate Controller
Mary Jo Murphy and Chief Accounting Officer
/s/ Jack R. Borsting
- -------------------------------------------- Director
Jack R. Borsting
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/s/ Hurdis M. Griffith
- -------------------------------------------- Director
Hurdis M. Griffith
/s/ Vernon B. Lewis
- -------------------------------------------- Director
Vernon B. Lewis
/s/ John L. Krakauer
- -------------------------------------------- Director
John L. Krakauer
/s/ Arthur W. Stellar
- -------------------------------------------- Director
Arthur W. Stellar
/s/ Dennis J. Reimer
- -------------------------------------------- Director
Dennis J. Reimer
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
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Exhibit
Number Description of Exhibit Page
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4.01 Certificate of Incorporation of the Company (filed
as Exhibit 3.01 to the Company's Annual Report on
Form 10-K filed with the Commission on January 27,
1997, as amended (the "Annual Report"), and hereby
incorporated by reference)
*4.02 Amended and Restated By-laws of the Company
*4.03 Form of PLATO Learning, Inc. 2000 Non-Employee
Directors Stock Option Plan
*5.01 Opinion of Winston & Strawn as to the legality
of the securities being registered
*23.01 Consent of Winston & Strawn (included in its
opinion filed as Exhibit 5.01)
*23.02 Consent of PricewaterhouseCoopers LLP
24.01 Powers of Attorney (included on signature page)
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* Filed herewith.