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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 20, 2002
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
incorporation or organization) Identification No.)
10801 NESBITT AVENUE SOUTH
BLOOMINGTON, MINNESOTA 55437
(Address of principal executive offices)
PLATO LEARNING, INC.
2002 STOCK PLAN
(Full title of plan)
John Murray Copy to:
President and Chief Executive Officer Martin R. Rosenbaum, Esq.
PLATO Learning, Inc. Maslon Edelman Borman & Brand, LLP
10801 Nesbitt Avenue South 3300 Wells Fargo Center
Bloomington, Minnesota 55437 90 South 7th Street
(952) 832-1000 Minneapolis, Minnesota 55402
(Name, address and telephone number, (612) 672-8200
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum Maximum
Title of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Share (1) Offering Price (1) Registration Fee (1)
- ---------------------------------------- ------------------ ----------------- --------------------- -----------------------
Common Stock, par value $.01
per share.................... 1,700,000 $17.05 $28,985,000 $2,666.62
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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 on the Nasdaq National Market System on March 18, 2002.
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PART I
Pursuant to the Note to Part I of Form S-8, the information required by
Items 1 and 2 of Form S-8 is not filed as a part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference.
The following documents filed with the Securities and Exchange 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, 2001;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
January 31, 2002;
(c) Definitive Proxy Statement for the 2002 Annual Meeting of
Shareholders filed on February 4, 2002;
(d) 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 Securities Exchange Act of 1934, including any subsequent amendment or
any report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 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 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, being hereinafter referred to as
"Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides the following:
(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that he 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 such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act 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 reasonable cause to believe that
his conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he 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) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expense which the Court of
Chancery or such other court shall deem proper.
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Under the provisions of the Company's By-laws, each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer, of the corporation or is or was serving at the request of
the corporation as a director, officer, employee, fiduciary, or agent of another
corporation or of a partnership, joint venture, trust or other enterprise, shall
be indemnified and held harmless by the corporation to the fullest extent which
it is empowered to do so by the General Corporation Law of the Sate of Delaware,
as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the corporation to
provide broader indemnification rights than said law permitted the corporation
to provide prior to such amendment) against all expense, liability and loss
(including attorneys' fees actually and reasonably incurred by such person in
connection with such proceeding and such indemnification shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in Section 2 of the Company's By-laws, the corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding initiated by such person only if such proceeding was authorized by
the board of directors of the corporation. The right to indemnification
conferred in the By-laws is a contract right and, subject to Sections 2 and 5 of
the Company's By-laws, shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition. The corporation may, by action of its board of directors, provide
indemnification to employees and agents of the corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
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.
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Item 8. Exhibits.
Exhibit Number Description of Exhibit
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4.1 Certificate of Incorporation of the Company (filed as
Exhibit 3.01 to the Company's Registration Statement on Form
S-1 (File Number 33-54296) filed with the Commission on
November 6, 1992 and incorporated herein by reference)
4.2 Amended and Restated By-laws of the Company (filed as
Exhibit 4.02 to the Company's Form S-8 filed with the
Commission on September 6, 2000, and incorporated herein by
reference)
4.3 PLATO Learning, Inc. 2002 Stock Plan (filed as Appendix A to
the Company's Definitive Proxy Statement filed on February
4, 2002 and incorporated herein by reference)
5.1 Opinion of Maslon Edelman Borman & Brand, LLP, as to the
legality of the securities being registered
23.1 Consent of Maslon Edelman Borman & Brand, LLP (included in
its opinion filed as Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (included on signature page)
Item 9. Undertakings.
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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the dollar
value of securities offered would not exceed that which was
registered) and any deviation from the high or low end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
aggregate, the changes in volume and price represent no more than 20
percent change in the
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maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraph (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 to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
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;
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.
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 March 20, 2002.
PLATO LEARNING, INC.
By: /s/ John Murray
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John Murray
President and Chief Executive Officer
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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 March 20, 2002.
Signature Title
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/s/ John Murray President and Chief Executive Officer
- -------------------------------------------- (Principal Executive Officer)
John Murray
/s/ Gregory J. Melsen Vice President, Finance & Chief Financial Officer
- -------------------------------------------- (Principal Financial Officer)
Gregory J. Melsen
/s/ Mary Jo Murphy Vice President, Corporate Controller and Chief
- -------------------------------------------- Accounting Officer and Assistant Secretary
Mary Jo Murphy (Principal Accounting Officer)
/s/ Joseph Duffy Director
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Joseph Duffy
/s/ Ruth L. Greenstein Director
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Ruth L. Greenstein
/s/ Thomas G. Hudson Director
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Thomas G. Hudson
/s/ John L. Krakauer Director
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John L. Krakauer
/s/ Dennis J. Reimer Director
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Dennis J. Reimer
/s/ William R. Roach Director
- --------------------------------------------
William R. Roach
/s/ Arthur W. Stellar Director
- --------------------------------------------
Arthur W. Stellar
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
Exhibit
Number Description of Exhibit
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5.1 Opinion of Maslon Edelman Borman & Brand, LLP as to the
legality of the securities being registered
23.2 Consent of PricewaterhouseCoopers LLP
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