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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 9, 2001
Registration No. 333-
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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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LEARNINGSTAR CORP.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0559897
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2 LOWER RAGSDALE DRIVE 93940
MONTEREY, CALIFORNIA (Zip Code)
(Address of principal executive
offices)
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LEARNINGSTAR CORP.
2001 EMPLOYEE STOCK PURCHASE PLAN
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RONALD ELLIOTT
CHIEF EXECUTIVE OFFICER
LEARNINGSTAR CORP.
2 LOWER RAGSDALE DRIVE
MONTEREY, CA 93940
(831) 333-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
JEFFREY L. KATEMAN, ESQ.
LATHAM & WATKINS
633 WEST FIFTH STREET, SUITE 4000
LOS ANGELES, CALIFORNIA 90071
(213) 485-1234
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CALCULATION OF REGISTRATION FEE
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PROPOSED
AMOUNT PROPOSED MAXIMUM
TITLE OF EACH CLASS OF OF SHARES MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
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Common Stock,
$0.01 par value......... 125,000 $2.52 $315,000 $79
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(1) The LearningStar Corp. 2001 Employee Stock Purchase Plan (the "Plan")
authorizes the issuance of a maximum of 125,000 shares of common stock
of LearningStar Corp., a Delaware corporation (the "Company"). This
registration statement shall also cover any additional shares of common
stock which may become issuable under the Plan by reason of any stock
split, stock dividend, recapitalization or other similar transaction
effected without the receipt of consideration which results in an
increase in the number of outstanding shares of common stock of the
Company.
(2) Estimated for purposes of computing the registration fee only pursuant
to Rule 457(c) of the Securities Act of 1933, as amended, based on the
average of the high and low sales prices of the registrant's common
stock of $2.52 per share as reported on The Nasdaq SmallCap Market on
July 5, 2001.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with
or included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated by reference in this Form S-8 as of their respective dates:
(a) Post-Effective Amendment No. 2 to the Company's Registration
Statement on Form S-4 (File No. 333-53454) filed with the
Commission on April 27, 2001;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001;
(c) The Company's Current Reports on Form 8-K filed with the
Commission on May 1, 2001 and May 4, 2001 and the Company's
Current Report on Form 8-K/A filed with the Commission on May
14, 2001; and
(d) The description of Common Stock contained in the Company's
registration statement on Form 8-A (File No. 000-32613) filed
with the Commission on April 30, 2001 pursuant to Section 12 of
the Exchange Act, including any subsequent amendment or report
filed for the purpose of amending such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended, after the date of
this registration statement and 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 incorporated by reference
in this registration statement and are a part hereof from the date of filing
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein 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.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under current Delaware law, a Delaware corporation may provide in its
certificate of incorporation for the elimination or limitation of personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Any such provision may not
limit a director's liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) in respect of certain unlawful dividend payments or stock redemptions
or repurchases and (iv) for any transaction from which the director derives an
improper personal benefit. The Company's Restated Certificate of Incorporation
provides that to the fullest extent permitted by the Delaware General
Corporation Law (the "DGCL"), as it now exists or as it may be amended in the
future, a director of the Company shall not be personally liable to the Company
or its stockholders for
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monetary damages for breach of fiduciary duties as a director. The effect of
this provision is to eliminate the Company's rights and the rights of the
Company's stockholders (through stockholders' derivative suits on behalf of the
Company) to recover monetary damages against a director for breach of the
fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described in
clauses (i) through (iv) above. This provision does not limit or eliminate the
Company's rights or the rights of any stockholder to seek nonmonetary relief
such as an injunction or rescission in the event of a breach of a director's
duty of care.
In addition, the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person who is a party to any action in
connection with any action, suit or proceeding brought or threatened by reason
of the fact that the person was a director, officer, employee or agent of the
Company, or is or was serving as such with respect to another entity at the
request of the Company. The DGCL also provides that the Company may purchase
insurance on behalf of any such director, officer, employee or agent. The
Company's Amended and Restated Bylaws provide that the Company will indemnify
any person to whom, and to the fullest extent, indemnification may be required
or permitted under the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following is a list of exhibits filed as part of this registration
statement, which are incorporated herein:
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-8 (File No. 333-64762) filed
with the Commission on July 9, 2001)
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 4.2 to the Company's Registration Statement
on Form S-8 (File No. 333-64762) filed with the Commission on
July 9, 2001)
*4.3 LearningStar Corp. 2001 Employee Stock Purchase Plan
*5.1 Opinion of Latham & Watkins
*23.1 Consent of Latham & Watkins (included as part of Exhibit 5.1)
*23.2 Consent of KPMG LLP
*23.3 Consent of PricewaterhouseCoopers LLP
*24 Power of Attorney (included on the signature pages of this
registration statement)
* Filed herewith.
ITEM 9. UNDERTAKINGS
(a) 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, as amended (the "Securities Act");
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(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 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) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply if the information to be included in a post effective amendment to 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
Exchange Act, that are incorporated by reference in the registration statement.
(2) That, for purposes 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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
(h) Insofar as indemnification for liabilities arising under the
Securities 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel that
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 Monterey, State of California, on this 9th day
of July, 2001.
LEARNINGSTAR CORP.
By: /s/ ROBERT CAHILL
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Robert Cahill
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Ronald Elliott and Robert Cahill, and each of them, with full power to act
without the other, such person's true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign this Registration Statement,
and any and all amendments thereto (including pre- and post-effective
amendments) or any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act, and to
file the same, with exhibits and schedules thereto, and other documents in
connection therewith, with the Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing necessary or desirable 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 any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed below by the following persons in their
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ AL NOYES
- ------------------------------------ Chairman of the Board July 9, 2001
Al Noyes
/s/ RONALD ELLIOTT Director and Chief Executive Officer July 9, 2001
- ------------------------------------ (Principal Executive Officer)
Ronald Elliott
/s/ ROBERT CAHILL
- ------------------------------------ Chief Financial Officer July 9, 2001
Robert Cahill (Principal Accounting Officer)
/s/ LOUIS CASAGRANDE
- ------------------------------------ Director July 9, 2001
Louis Casagrande
/s/ DEAN DEBIASE
- ------------------------------------ Director July 9, 2001
Dean DeBiase
/s/ RICHARD DELANEY
- ------------------------------------ Director July 9, 2001
Richard Delaney
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/s/ SCOTT GRAVES
- ------------------------------------ Director July 9, 2001
Scott Graves
/s/ MICHAEL KOLOWICH
- ------------------------------------ Director July 9, 2001
Michael Kolowich
/s/ ROBERT MACDONALD
- ------------------------------------ Director July 9, 2001
Robert MacDonald
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INDEX TO EXHIBITS
EXHIBIT PAGE
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4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-8 (File No. 333-64762)
filed with the Commission on July 9, 2001)
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 4.2 to the Company's Registration Statement
on Form S-8 (File No. 333-64762) filed with the Commission on
July 9, 2001)
*4.3 LearningStar Corp. 2001 Employee Stock Purchase Plan
*5.1 Opinion of Latham & Watkins
*23.1 Consent of Latham & Watkins (included as part of Exhibit 5.1)
*23.2 Consent of KPMG LLP
*23.3 Consent of PricewaterhouseCoopers LLP
*24 Power of Attorney (included on the signature page of this
Registration Statement)
*Filed herewith