As filed with the Securities and Exchange Commission on July 7, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PROSOFTTRAINING.COM
(Exact Name of Registrant as Specified in Its Charter)
Nevada 87-0448639
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3001 Bee Caves Road, Suite 100
Austin, Texas 78746
(512) 328-6140
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Executive Offices)
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Jerrell M. Baird
Chief Executive Officer
ProsoftTraining.com
3001 Bee Caves Road, Suite 100
Austin, Texas 78746
(512) 328-6140
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent For Service)
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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. 333-11247, Registration Statement No. 333-
28993, Registration Statement No. 333-35249 and Registration Statement No. 333-
30336.
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CALCULATION OF REGISTRATION FEE
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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
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Common Stock, par value
$0.001 per share(2).... 3,599,983 $14.50 $52,199,753 $13,780.74
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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 July 6, 2000, as reported by the NASDAQ
SmallCap Market.
(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; and 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. Accordingly, all five Registration
Statements use the Prospectus that is a part of this Registration
Statement.
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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.
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7,557,833 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 6,240,357 presently outstanding shares and 1,317,476 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
SmallCap Market, 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 SmallCap Market under the symbol
"POSO." The closing bid price of the Common Stock was $14.50 on July 6, 2000.
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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 , 2000
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
7,557,833 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.
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TABLE OF CONTENTS
PAGE
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Risk Factors............................................................... 3
Where You Can Find More Information........................................ 11
About ProsoftTraining.com.................................................. 12
The Offering............................................................... 13
Use of Proceeds............................................................ 13
Selling Stockholders....................................................... 14
Plan of Distribution....................................................... 17
Experts.................................................................... 18
2
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 a limited operating history, have incurred significant losses and may
not be able to achieve future profitability.
We commenced operations on February 1, 1995. Your evaluation of the risks
and uncertainties of our business will be difficult because of this limited
operating history. We incurred net losses of approximately $51 million from our
inception through the fiscal quarter ended April 30, 2000. The $60,000 of net
income we reported for the fiscal quarter ended October 31, 1999 was the first
profit in our history. Our ability to achieve future profitability will depend
on our ability to expand our brand awareness and customer base, increase our
national and international market presence and enhance and maintain our
proprietary technology. To achieve these goals, we will need to increase
spending on marketing and courseware development and other operating costs. To
the extent that our revenues do not increase as a result of this increased
spending, we may not be able to achieve profitability in the future. If we do
achieve profitability, we may not be able to sustain it.
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 1999,
IBM's Software Group represented 14.4% of our revenue and IBM's Global Services
Division represented 13.7% of our revenue. If we lose either of these
customers, or if revenue from these customers 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 Internet 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
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companies seeking to use our courseware, Internet skills education 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
. 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
Internet 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 INTERNET 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
. 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 and instruction systems. 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,
particularly instructors, course content developers and technical, sales and
marketing personnel. Additionally, our ability to adequately staff our classes
is directly tied to the availability and competency of third-party instructors
whom we use to teach a number of our courses. Qualified personnel are in great
demand throughout education and Internet-related industries and we require a
relatively rare blend of technical and communication skills. As a result of a
typically heavy travel schedule and a high demand from customers for our
instructors, we expect instructor turnover to average at least 20% per year.
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
instructors, 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;
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. difficulties in staffing and managing international operations;
. 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 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.
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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, our Senior Vice President of Sales, William L. Tucker, and our
Vice President of Consulting, Gart Davis, 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 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
competitors include:
. two companies, Novell and HyCurve, that offer certification and
courseware;
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. 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 INTERNET 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 Internet 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 WILL DECLINE.
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, inconsistent quality of service and lack of availability of cost-
effective, high-speed service. As Internet usage grows, the communications
infrastructure may not 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
8
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. 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.
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 Internet and
technology 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.
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OUR MANAGEMENT MAY APPLY THE PROCEEDS OF THIS OFFERING TO USES WITH WHICH OUR
STOCKHOLDERS MAY NOT AGREE.
Our management will have considerable discretion in the application of the
net proceeds received by us from this offering, and you will not have the
opportunity, as part of your investment decision, to assess whether the
proceeds are being used appropriately. You must rely on the judgment of our
management regarding the application of the proceeds of this offering. The net
proceeds may be used for corporate purposes that do not improve our efforts to
achieve profitability or increase the market price of our common stock. Pending
application of the net proceeds from this offering, they may be placed in
investments that do not produce income or that lose value.
OF OUR TOTAL OUTSTANDING SHARES, 1,142,422, OR 5%, ARE RESTRICTED FROM
IMMEDIATE RESALE BUT MAY BE SOLD INTO THE MARKET IN THE NEAR FUTURE. THIS COULD
CAUSE THE MARKET PRICE OF OUR COMMON STOCK TO DECLINE SIGNIFICANTLY, EVEN IF
OUR BUSINESS IS DOING WELL.
As of June 30, 2000, we had outstanding 22,357,029 shares of common stock.
Of these shares, 21,214,607 are either registered or are eligible for sale in
the public market under Rule 144 (subject in some cases to volume limitations),
Rule 144(k) or Rule 701. The remaining 1,142,422 shares are restricted
securities that have been held for less than one year. The holders of such
1,142,422 shares of our common stock are entitled to the registration of their
shares under the Securities Act of 1933 beginning in January 2001. These shares
will become eligible for sale in the public market under Rule 144 (subject to
volume limitations) in June 2001. As restrictions on resale end, the market
price of our common stock could decline significantly if the holders of these
newly transferable shares sell them or are perceived by the market as intending
to sell them.
WE ARE SUBJECT TO PROVISIONS OF NEVADA LAW THAT COULD DELAY OR DETER TENDER
OFFERS OR TAKEOVER ATTEMPTS, WHICH COULD ADVERSELY AFFECT THE MARKET PRICE OF
OUR COMMON STOCK.
Provisions of Nevada law could make it more difficult for a third party to
acquire us, even if doing so would be beneficial to our stockholders. Please
see "Description of Capital Stock--Nevada Anti-Takeover Legislation" for a
description of these provisions.
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," "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.
10
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, 1999
(including information specifically incorporated by reference into our
Form 10-K from our Proxy Statement for our 1999 Annual Meeting of
Stockholders);
. Quarterly Reports on Form 10-Q for the quarters ended October 31, 1999,
January 31, 2000 and April 30, 2000;
. Current Report on Form 8-K dated June 27, 2000.
. The description of our Common Stock contained in the Registration
Statement on Form 8-A dated October 11, 1996.
This Prospectus is part of five Registration Statements we filed with the
SEC (Nos. 333-11247, 333-28993, 333-35249, 333-30336 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 100
Austin, TX 78746
Phone (512) 328-6140, Ext. 300
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.
11
ABOUT PROSOFTTRAINING.COM
We are a leading provider of professional Internet skills content, training
and certification. We sell and license our courseware, offer instruction
services, and provide Internet skills certification through our brand,
Certified Internet Webmaster, or CIW, to training companies, internal corporate
training departments and academic institutions around the world. Our products
allows individuals to develop, upgrade and certify their Internet skills.
Our courses, which are organized into job-role certification tracks and are
vendor-neutral, encompass a wide range of Internet 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 ProFlex program.
Our principal executive offices are located at 3001 Bee Caves Road, Suite
100, 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. In October 1996, Tel-Fed, Inc. changed its name to Prosoft I-Net
Solutions, Inc. In January 1999, Prosoft I-Net Solutions changed its name to
ProsoftTraining.com.
12
THE OFFERING
Common Stock Offered by the Selling Stockholders.... 7,557,833 shares(1)
Common Stock to be outstanding after this Offering.. 23,674,505 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
approximately $1,778,000
if all of the Warrants
are exercised. Any
proceeds we receive will
be utilized for working
capital and general
corporate purposes.
NASDAQ SmallCap Symbol.............................. POSO
- --------
(1) Includes 1,317,476 shares issuable upon exercise of the Warrants.
(2) Does not include 2,422,452 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 approximately $1,778,000. Proceeds we receive,
if any, will be utilized for working capital and general corporate purposes.
13
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 or Old Prosoft 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 30, 2000, with respect to the Selling Stockholders:
SHARES SHARES
BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
PRIOR TO COVERED BY AFTER THE
NAME OF SELLING STOCKHOLDER OFFERING PROSPECTUS OFFERING(1)
- --------------------------- ------------------- ----------- ------------------
AGAPE International Center
of Truth.................. 1,000 1,000 0
Alaimo, Janet.............. 1,000 1,000 0
Anderson, Erik T........... 1,688 1,688 0
Banc of America Capital
Management Funds I
SmallCap Growth Fund...... 3,500 3,500 0
Baco, Raymundo C........... 21,340 8,840 12,500(2)
Baird, Jerrell M. (3)...... 314,454 114,454 200,000(4)
Brown, David H............. 70,000 70,000 0
Bussell, Mark.............. 32,275 32,275 0
Cahill, John............... 150,000 50,000 100,000(2)
Calamitous L.C............. 15,000 15,000 0
Charles Schwab and Company
FBO Matthew Linsey........ 15,000 15,000 0
Clark Fork Medical Assn.
Trust..................... 10,981 10,981 0
Common Sense Partners...... 159,301 57,500 101,801
Corbin, Brooks A. (5)...... 2,333 2,333 0
Cranshire Capital, L.P..... 154,000 154,000 0
D'Ambrosio, Louis J........ 57,228 57,228 0
Danks, Don (6)............. 15,000 15,000 0
Davis, Anne T.............. 5,378 5,378 0
Davis, Gart D.............. 179,388 161,888 17,500(2)
DLJSC FBO Franklin Coffey.. 40,000 40,000 0
Dorton, David.............. 2,500 2,500 0
Dowling, Benjamin.......... 300 300 0
Eagle Growth Limited Part-
nership................... 228,906 228,906 0
Ebbets Field International,
Ltd....................... 153,749 153,749 0
F&S Partnership............ 30,000 30,000 0
Fidelity Management Trust
Co. FBO Donald
Halcomb IRA............... 10,000 10,000 0
Fidelity Management Trust
Co. FBO John Ryan IRA..... 9,500 9,500 0
Fidelity Management Trust
Co. FBO David I. Perl
IRA (7)................... 120,331 10,000 110,331(2)
Fleming, David............. 5,000 5,000 0
Fliege, James Ritchie...... 13,614 13,614 0
Franklin, William I........ 110,228 110,228 0
Fuller, Joyce.............. 12,875 12,875 0
Fuller, Lawrence W......... 2,000 2,000 0
Fuller, J. William (8)..... 32,151 32,151 0
Geren, Preston M. III,
Trustee................... 78,422 78,422 0
Gladstein, Gary............ 25,906 25,906 0
Gramm, Colton.............. 23,614 23,614 0
Harbor Growth Fund......... 340,000 110,000 230,000
Hunt Capital Growth Fund
II, L.P. (9).............. 1,629,220 1,629,220 0
International Webmaster As-
sociation................. 18,000 18,000 0
14
SHARES SHARES
BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
PRIOR TO COVERED BY AFTER THE
NAME OF SELLING STOCKHOLDER OFFERING PROSPECTUS OFFERING(1)
- --------------------------- ------------------- ----------- ------------------
Investor Contacts Ltd...... 222,150 222,150 0
Judkins, Bary.............. 5,000 5,000 0
Ketcher, Frederick......... 2,500 2,500 0
Kesselring, William........ 64,300 64,300 0
Khaled, Michael E.......... 25,000 25,000 0
King, Bradley J............ 6,188 6,188 0
Kopor, Betsy............... 500 500 0
Korn, Jeffrey G. (10)...... 86,500 11,500 75,000(2)
Lexington Venture Capital
LLC....................... 103,500 103,500 0
Luntz, Jerry............... 2,770 1,700 1,070(2)
MacNamara, John............ 150,000 50,000 100,000(2)
Montesi, Terry............. 35,385 35,385 0
Montrose Investments....... 136,363 136,363 0
Morgan Guaranty Trust Com-
pany of New York, as In-
vestment Manager for the
Alfred F. Sloan Foundation
(Multi-Market Account)
(11)...................... 103,025 103,025 0
Morgan Guaranty Trust Com-
pany of New York, as
Trustee of the Multi-Mar-
ket Special Investment
Trust Fund of Morgan Guar-
anty Trust Company of New
York (11)................. 103,025 103,025 0
Morgan Guaranty Trust Com-
pany of New York, as
Trustee of the Commingled
Pension Trust Fund (Multi-
Market Special Investment
Fund II) of Morgan Guar-
anty Trust Company of New
York (11)................. 228,811 228,811 0
Nations Small Company
Fund...................... 105,300 105,300 0
Noranda Finance, Inc. Com-
mon Trust................. 86,130 86,130 0
Olafson, Gregory........... 45,000 45,000 0
Owens Illinois............. 155,000 70,000 85,000
Pabrai, Uday Om (12)....... 2,862 2,862 0
Palm Trust................. 12,490 12,490 0
Parker Foundation.......... 20,150 20,150 0
Peninsula Fund............. 811,480 363,966 447,514
Peterson, Melvin D......... 5,000 5,000 0
Quantum.................... 45,000 45,000 0
Quota Rabbico N.V.--Shapi-
ro........................ 96,626 96,626 0
Redmond, Richard & Diana... 20,000 20,000 0
Richardson, William E.
(13)...................... 25,000 25,000 0
Ropar LLC.................. 40,000 40,000 0
Rosen, Harvey.............. 50,000 50,000 0
Rousseau, Darren A......... 2,620 2,620 0
Ruenitz & Associates....... 17,500 17,500 0
Ryan, John................. 7,275 7,275 0
Schmidt Family Trust....... 13,000 13,000 0
Service Master Venture
Fund, LLC................. 572,268 572,268 0
Shannon Free Airport Devel-
opment Company Ltd........ 120,864 120,864 0
Shannon Ventures Ltd....... 12,500 12,500 0
Shapiro, Steven............ 10,000 10,000 0
Siegel, Richard............ 28,933 28,933 0
Siegfried & Jenson 401K
Plan FBO Michael R. Rich-
man....................... 5,000 5,000 0
Siegfried & Jenson 401K
Plan FBO Ned Siegfried.... 10,000 10,000 0
15
SHARES SHARES
BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
NAME OF SELLING PRIOR TO COVERED BY AFTER THE
STOCKHOLDER OFFERING PROSPECTUS OFFERING(1)
- --------------- ------------------- ----------- ------------------
Small Cap Equity Fund... 8,000 8,000 0
Stallman, Andrew (14)... 48,500 15,000 33,500(2)
Steamer Partners Fund... 75,000 75,000 0
Suleiman, Anver......... 3,126 3,126 0
Suleiman, John.......... 2,792 2,792 0
Trimble, Kelly.......... 371 371 0
Turnbow Investment Co.
L.C.................... 5,724 5,724 0
Turnbow, Lynn........... 134,571 134,571 0
T. Rowe Price New Hori-
zons Fund, Inc. ....... 1,175,000 500,000 675,000
Underwood, Gerald B..... 5,000 5,000 0
Underwood, Kevin........ 2,000 2,000 0
Vanderhoof, Clark D..... 10,000 10,000 0
Vanderhoof, Michael D... 129,454 129,454 0
VanZandt, Gloria........ 7,000 7,000 0
Westcliff Small Cap
Fund, L.P. ............ 5,670 5,670 0
Westcliff Partners,
L.P. .................. 27,710 27,710 0
Westcliff Aggressive
Growth, L.P. .......... 8,340 8,340 0
Westcliff Long/Short,
L.P. .................. 7,880 7,880 0
Westcliff Master Fund,
L.P. .................. 31,360 31,360 0
Westcore Select Fund.... 150,000 150,000 0
Westcore Small-Cap
Growth Fund............ 20,000 20,000 0
Wilen, Sylvia........... 10,700 10,700 0
Williams, David R....... 10,000 10,000 0
Williams, Kelly......... 1,000 1,000 0
Wilson, D. Ross......... 10,000 10,000 0
World Horizon Aggressive
Growth Fund............ 3,200 3,200 0
WWW Internet Fund....... 164,454 164,454 0
--------- --------- ---------
9,747,049(15) 7,557,833(16) 2,189,216
========= ========= =========
- --------
(1) Assumes that each Selling Stockholder sells all of the Shares to which
this Prospectus relates.
(2) Represents less than 1% of our shares after this offering.
(3) Mr. Baird is Chairman of the Board and Chief Executive Officer of the
Company.
(4) Represents 1.1% 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) Mr. Perl is Chief Operating Officer of the Company.
(8) Mr. Fuller is a Director of the Company.
(9) 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.
(10) Mr. Korn is a Director and General Counsel of the Company.
(11) J.P. Morgan & Co., Incorporated is the ultimate parent of the trustee of
each of these stockholders.
(12) Mr. Pabrai is a former officer and Director of the Company.
(13) Mr. Richardson is a former Director of the Company.
(14) Mr. Stallman is a former Director of the Company.
(15) Includes 379,331 shares subject to currently exercisable options and
1,317,476 shares subject to currently exercisable warrants of the
Company.
(16) Includes 1,317,476 shares subject to currently exercisable warrants.
16
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 and pledgees
selling Shares received from a named Selling Stockholder after the date of this
Prospectus. 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 SmallCap Market, 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 or pledgee intends to sell more than 500 Shares, a
supplement to this Prospectus will be filed.
17
EXPERTS
Our consolidated financial statements as of July 31, 1999 and 1998 and for
each of the two years in the period ended July 31, 1999 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 included in reliance on Grant Thornton LLP's
report, given on their authority as experts in accounting and auditing.
Ernst & Young LLP, independent auditors, have audited our consolidated
balance sheet as of July 31, 1997 (not presented separately therein), and the
related consolidated statements of operations, stockholders' equity, and cash
flows for the year ended July 31, 1997, included in our Annual Report on Form
10-K for the year ended July 31, 1999, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our consolidated financial statements are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
18
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............... $13,781
Accounting fees and expenses...................................... $ 5,000
Blue sky fees and expenses (including counsel fees)............... $ 2,000
Other legal fees and legal expenses............................... $10,000
Miscellaneous expenses............................................ $ 5,000
-------
Total........................................................... $35,781
=======
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 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,
II-1
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.
Item 16. Exhibits and Financial Statement Schedules.
(a) Index of Exhibits
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 333-35249 ("Registration
Statement No. 333-35249") 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 Specimen Stock Certificate. Filed as Exhibit 4 to Registration
Statement No. 333-11247 and incorporated herein by reference.
5.1 Opinion of Hewitt & McGuire, LLP.
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 ProsoftTraining.com Amended 1996 Stock Option Plan. Filed as Exhibit
10.2 to Registration Statement No. 333-35249 and incorporated
herein by reference.
10.3 Stock and Warrant Purchase Agreement dated April 15, 1996 by and
among the Company, Donald L. Danks, Keith D. Freadhoff, Douglas
Hartman and various investors. Filed as Exhibit 10.3 to
Registration Statement No. 333-11247 and incorporated herein by
reference.
10.4 Form of Registration and Lock-Up Agreement dated September , 1996
between the Company and certain of the Selling Stockholders. Filed
as Exhibit 10.5 to Registration Statement No. 333-11247 and
incorporated herein by reference.
10.5 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.
II-2
Exhibit
No. Description of Exhibits
------- -----------------------
10.6 Office Building Lease dated as of December 16, 1996 between COSCAN
California Limited Partnership and the Company. Filed as Exhibit 10
to the Company's Report on Form 10-Q for the quarter ended January
31, 1997 and incorporated herein by reference.
10.7 Form of Subscription Agreement, entered into in February through
April 1997, between the Company and various investors. Filed as
Exhibit 10.16 to Registration Statement No. 333-11247 and
incorporated herein by reference.
10.8 Registration Rights Agreement dated as of March 13, 1997 among the
Company and various investors. Filed as Exhibit 10.17 to
Registration Statement No. 333-11247 and incorporated herein by
reference.
10.9 Form of Subscription Agreement, entered into in November 1997
between the Company and various investors. Filed as Exhibit 10.21
to Registration Statement 333-35249 and incorporated herein by
reference.
10.10 Registration Rights Agreement dated as of November 12, 1997 among
the Company and various investors. Filed as Exhibit 10.22 to
Registration Statement 333-35249 and incorporated herein by
reference.
10.11 Stock Purchase Agreement dated as of January 1, 1998 by and between
the Company and Uday O. Pabrai with respect to all outstanding
capital stock of Net Guru Technologies, Inc. Filed as Exhibit 2.1
to the Company's Current Report on Form 8-K dated January 1, 1998
and incorporated herein by reference.
10.12 Employment Agreement dated January 1, 1998 between the Company and
Uday O. Pabrai. Filed as Exhibit 10.1 to the Company's Current
Report on Form 8-K dated January 1, 1998 and incorporated herein by
reference.
10.13 Promissory Note dated June 18, 1998, made by Uday Pabrai in favor of
the Company. Filed as Exhibit 10.16 to the Company's Annual Report
on Form 10-K for the year ending July 31, 1998 ("1998 Form 10-K")
and incorporated herein by reference.
10.14 Consulting Agreement dated April 30, 1998, between Investment
Transaction, LLC and the Company. Filed as Exhibit 10.17 to the
Company's 1998 Form 10-K and incorporated herein by reference.
10.15 Form of Stock Purchase Agreement dated as of November 18, 1998 by
and among the Company and various investors. Filed as Exhibit 10.18
to Registration Statement No. 333-35249 and incorporated herein by
reference.
10.16 Note and Warrant Purchase Agreement dated as of December 2, 1998 by
and among the Company and various investors. Filed as Exhibit 10.19
to Registration Statement No. 333-35249 and incorporated herein by
reference.
10.17 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.
10.18 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.
10.19 Consultant Agreement dated July 1, 1999 by and between the Company
and Investment Transaction, LLC. Filed as Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the quarterly period
ended April 30, 1999 and incorporated herein by reference.
10.20 Employment Agreement dated January 1, 1999 between Prosoft I-Net
Solutions, Inc. and David I. Perl. Filed as Exhibit 10.2 to the
Company's Quarterly Report on Form 10-Q for the quarterly period
ended April 30, 1999 and incorporated herein by reference.
II-3
EXHIBIT
NO. DESCRIPTION OF EXHIBITS
------- -----------------------
10.21 Employment Agreement dated January 1, 1999 between Prosoft I-Net
Solutions, Inc. and Uday O. Pabrai. Filed as Exhibit 10.3 to the
Company's Quarterly Report on Form 10-Q for the quarterly period
ended April 30, 1999 and incorporated herein by reference.
10.22 Employment Agreement dated January 1, 1999 between Prosoft I-Net
Solutions, Inc. and Jerrell M. Baird. Filed as Exhibit 10.4 to the
Company's Quarterly Report on Form 10-Q for the quarterly period
ended April 30, 1999 and incorporated herein by reference.
10.23 Securities Purchase Agreement dated as of November 22, 1999 among
ProsoftTraining.com 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.
10.24 Registration Rights Agreement dated as of November 22, 1999 among
ProsoftTraining.com 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.
10.25 Warrant Agreement dated as of November 22, 1999 among
ProsoftTraining.com 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.
10.26 Stock Purchase Agreement dated as of June 27, 2000 by and among
ProsoftTraining.com, 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.
10.27 Registration Rights Agreement dated as of June 27, 2000 by and
between ProsoftTraining.com 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.
10.28 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.
10.29 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.
10.30 Securities Purchase Agreement dated June 27, 2000 by and among
ProsoftTraining.com 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.
10.31 Registration Rights Agreement dated June 27, 2000 by and among
ProsoftTraining.com 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.
21 Subsidiaries of the Company. Filed as Exhibit 21 to the Company's
Annual Report on Form 10-K for the year ending July 31, 1999 and
incorporated herein by reference.
23.1 Consent of Grant Thornton LLP, Independent Auditors.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Hewitt & McGuire, LLP (included in the opinion filed as
Exhibit 5.1).
23.4 Consent of Semple & Cooper, LLP, Independent Auditors.
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 30th day of June, 2000.
PROSOFTTRAINING.COM
/s/ Jerrell M. Baird
By: _________________________________
Jerrell M. Baird,
Chief Executive Officer
II-6
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 30, 2000:
Signature Title
--------- -----
/s/ Jerrell M. Baird Chief Executive Officer and Chairman of the
___________________________________________ Board (Principal Executive Officer)
Jerrell M. Baird
/s/ William J. Weronick Vice President, Finance (Principal
___________________________________________ Financial and Accounting Officer)
William J. Weronick
/s/ J. William Fuller Director
___________________________________________
J. William Fuller
/s/ Richard J. Groeneweg Director
___________________________________________
Richard J. Groeneweg
/s/ J.R. Holland, Jr. Director
___________________________________________
J.R. Holland, Jr.
/s/ Jeffrey G. Korn Director
___________________________________________
Jeffrey G. Korn
/s/ Charles McCusker Director
___________________________________________
Charles McCusker
/s/ Dr. Edward Walsh Director
___________________________________________
Dr. Edward Walsh
II-7