As filed with the Securities and Exchange Commission
on August 18, 1998
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
TRO 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.)
1721 Moon Lake Boulevard, Suite 555
Hoffman Estates, Illinois 60194
(847) 781-7800
(Address, including ZIP code, and telephone number, including area code,
of registrant's principal executive offices)
TRO LEARNING, INC.
SAVINGS/RETIREMENT PLAN
(Full title of plan)
ANDREW N. PETERSON
SENIOR VICE PRESIDENT,
CHIEF FINANCIAL OFFICER
AND TREASURER
1721 MOON LAKE BOULEVARD
SUITE 555
HOFFMAN ESTATES, ILLINOIS 60194
(847) 781-7800
(Name, address, including ZIP code, and
telephone number, including area code,
of agent for service)
COPY TO:
LELAND E. HUTCHINSON, ESQ.
WINSTON & STRAWN
35 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601
(312) 558-7336
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered (1) registered (1) price per share (2) offering price (1) registration fee
Common Stock, 200,000 shs. $9.50 $1,900,000.00 $560.50
par value
$.01 per share
==========================================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Calculated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, based upon the average of the bid and ask price of the Common
Stock of TRO Learning, Inc. on the Nasdaq National Market on August 14,
1998.
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 TRO Learning, Inc. (the "Company")
and by the TRO Learning, Inc. 401(K) Plan (the "Plan") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K as filed with the
Commission (file number 000-20842) on January 15, 1998 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), containing audited
financial statements for the Company's latest fiscal year.
(b) The Plan's Annual Report on Form 11-K as filed with the
Commission (file number 000-20842) on under the Exchange Act, containing
audited financial statements for the Plan's latest fiscal year.
(c) All other reports filed by the Company with the Commission
(file number 000-20842) pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the Annual Report on Form
10-K referenced above.
(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 (file number 0-20842) 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 and the Plan pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after 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, 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
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 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.
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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
- ------- ----------------------
4.01 Restated 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) (the "Registration Statement") and hereby incorporated by
reference).
4.02 By-laws of the Company (filed as Exhibit 3.02 to the Registration
Statement and hereby incorporated by reference).
4.03 Specimen Common Stock Certificate of the Company (filed as Exhibit
4.02 to the Registration Statement and hereby incorporated by
reference).
*4.04 TRO Learning, Inc. Savings/Retirement Plan.
*5.01 Undertaking re: Submission of Plan.
*23.01 Consent of PricewaterhouseCoopers LLP
*23.02 Consent of Arthur Andersen LLP
24.01 Powers of Attorney (included on signature page).
_____________________
* Filed herewith.
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ITEM 9. UNDERTAKINGS
(a) The 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;
(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 this 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-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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 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 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.
(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
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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.
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 Hoffman Estates, State of Illinois, on August
18, 1998.
TRO LEARNING, INC.
By: /s/ William R. Roach
------------------------------
William R. Roach
POWER OF ATTORNEY
The undersigned directors and executive officers of TRO Learning,
Inc. do hereby constitute and appoint Andrew N. Peterson 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 TRO 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 August 18, 1998.
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SIGNATURE TITLE
/s/ William R. Roach Chairman of the Board, President,
- ------------------------------ Chief Executive Officer and
William R. Roach Director (Principal Executive Officer)
/s/ Andrew N. Peterson Senior Vice President, Chief
- ------------------------------ Financial Officer, Treasurer and
Andrew Peterson Secretary (Principal Financial
Officer and Chief Accounting Officer)
/s/ Jack R. Borsting Director
- ------------------------------
Jack R. Borsting
/s/ Tony Christianson Director
- ------------------------------
Tony J. Christianson
/s/ Vernon B. Lewis, Jr. Director
- ------------------------------
Vernon B. Lewis
/s/ John L. Krakauer Director
- ------------------------------
John L. Krakauer
/s/ John Patience Director
- ------------------------------
John Patience
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The Plan. Pursuant to the requirements of the Securities Exchange Act
of 1934, the Plan administrator has duly caused this Registration Statement
to be signed on its behalf by the undersigned hereunto duly authorized in the
City of Hoffman Estates, State of Illinois on August 18, 1998.
TRO LEARNING, INC.
SAVINGS/RETIREMENT PLAN
By: /s/ William R. Roach
------------------------------
Name: William R. Roach
Its: Trustee
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
Exhibit
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
4.01 Restated 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) (the "Registration Statement") and hereby
incorporated by reference).
4.02 By-laws of the Company (filed as Exhibit 3.02 to the Registration
Statement and hereby incorporated by reference).
4.03 Specimen Common Stock Certificate of the Company (filed as
Exhibit 4.02 to the Registration Statement and hereby
incorporated by reference).
*4.04 TRO Learning, Inc. Savings/Retirement Plan.
*5.01 Undertaking re: Submission of Plan.
*23.01 Consent of PricewaterhouseCoopers LLP
*23.02 Consent of Arthur Andersen LLP
24.01 Powers of Attorney (included on signature page).
_____________________
* Filed herewith.