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As filed with the Securities and Exchange Commission on December 6, 2000
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
_______________
PROSOFTTRAINING.COM
(Exact name of registrant as specified in its charter)
Nevada 87-048639
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
3001 Bee Caves Road, Suite 300
Austin, Texas 78746
(Address of principal executive offices) (Zip Code)
_______________
2000 STOCK INCENTIVE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
NON-PLAN OPTIONS GRANTED TO CERTAIN INDIVIDUALS
(Full title of the Plans)
_______________
Jerrell M. Baird
Chief Executive Officer
Prosofttraining.com
3001 Bee Caves Road, Suite 300
Austin, Texas 78746
(Name and address of agent for service)
(512) 328-6140
(Telephone number, including area code, of agent for service)
_______________
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Amount to be Offering Price Maximum Aggregate Amount of
Title of Securities to be Registered Registered(1) per Share Offering Price Registration Fee
------------------------------------ --------------------- ------------------- ----------------- ----------------
<S> <C> <C> <C> <C>
2000 Stock Incentive Plan
-------------------------
Common Stock, $0.001 par value 2,750,000 shares $8.2657(2) $22,730,675(2) $6,000.90
2000 Employee Stock Purchase Plan
------------------------------
Common Stock, $0.001 par value 100,000 shares $8.2657(2) $ 826,570(2) $ 218.21
Options Granted to Certain Individuals(3)
-----------------------------------------
Common Stock, $0.001 par value 280,500 shares $6.5260(4) $ 180,543(4) $ 483.26
--------------------- ----------------
3,130,500 shares
=====================
Aggregate Registration Fee $6,702.37
================
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 2000 Employee Stock Purchase
Plan, the 2000 Stock Incentive Plan and the Options by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration which results
in an increase in the number of the outstanding shares of Registrant's
Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling prices per share of Registrant's Common Stock on
November 30, 2000, as reported by the Nasdaq National Market.
(3) The Options were granted pursuant to written compensation agreements to
the following individuals: Kevin Karschnik, Julie Rowe, Judson Slusser,
William Tucker, Ragan Altizer and Edward Walsh.
(4) Calculated solely for the purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the weighted
average exercise price of $6.5260 per share in effect for the options.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
Prosofttraining.com (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended July 31, 2000 filed pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "1934 Act");
(b) All other reports filed by the Registrant pursuant to Section 13
of the 1934 Act since July 31, 2000; and
(c) The Registrant's Registration Statement on Form 8-A12G/A filed
with the SEC on October 22, 1996, in which are described the
terms, rights and provisions applicable to the Registrant's
outstanding Common Stock.
All reports and definitive proxy or information statements
subsequently filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which de-registers all securities
then remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Nevada Private Corporation Law ("NPCL") 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 such person 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 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, in
connection with the defense or settlement 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 such a person has been adjudged
by a court of competent jurisdiction to be liable to the corporation or for
amounts paid in settlement to the corporation and (y) any other action or suit
or proceeding against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement, actually and reasonably incurred, 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, 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," the corporation must indemnify such person. The
articles of incorporation or bylaws may provide that the expenses of officers
and directors incurred in defending any such action must be paid
3
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as incurred and in advance of the final disposition of such action. The NPCL
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 of 1933,
as amended (the "1933 Act").
The Registrant's Restated Articles of Incorporation provide that
the Registrant shall indemnify any director or officer of the Registrant in
connection with certain actions, suits or proceedings, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred. The Registrant is also required to pay any
expenses incurred by a director or officer in defending the Registrant or its
stockholders for damages for breach of fiduciary duty as a director or officer,
provided that such a provision must not eliminate or limit the liability of a
director or officer for: (a) acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law; or (b) the payment of illegal
distributions. The Registrant's Restated Articles of Incorporation include a
provision eliminating the personal liability of directors for breach of
fiduciary duty except that such provision will not eliminate or limit any
liability which may not be so eliminated or limited under applicable law.
The Registrant's Bylaws generally require the Registrant to
indemnify, as well as to advance expenses, to its directors and its 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 be
ultimately determined that they are not entitled to indemnification by the
Registrant. The Registrant has also entered into indemnification agreements with
its directors and officers which similarly provide for the indemnification and
advancement of expenses by the Registrant.
The Registrant maintains liability insurance for its 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 the
Registrant.
Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the 1933 Act and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
--------
<TABLE>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
4 Instruments Defining the Rights of Stockholders. Reference is made to the Registrant's
Registration Statement No. 000-21535 on Form 8-A12G/A, together with any exhibits thereto,
which are incorporated herein by reference pursuant to Item 3(c) to this Registration
Statement.
5 Opinion and consent of Jeffrey G. Korn.
23.1 Consent of Independent Certified Public Accountants.
23.2 Consent of Jeffrey G. Korn is contained in Exhibit 5.
24 Power of Attorney. Reference is made to the Signature Page of this Registration Statement.
99.1 2000 Stock Incentive Plan.
99.2 2000 Employee Stock Purchase Plan.
99.3 Form of Option to Purchase Common Stock Granted to Certain
Individuals.
</TABLE>
4
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Item 9. Undertakings
------------
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement: (i) to include any prospectus required
by Section 10(a)(3) of the 1933 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 clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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; and (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 Registrant's 2000
Stock Incentive Plan and 2000 Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into 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
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 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 Registrant 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 Austin, State of Texas on this 4th day
of December, 2000.
PROSOFTTRAINING.COM
By: /s/ Jerrell M. Baird
-------------------------------
Jerrell M. Baird
Chief Executive Officer
5
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POWER OF ATTORNEY
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KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Prosofttraining.com, a
Nevada corporation, do hereby constitute and appoint Jerrell M. Baird and
Jeffrey G. Korn and each of them, the lawful attorneys-in-fact and agents with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
---------------- ------------------------------------------------- -------------
<S> <C> <C>
/s/ Jerrell M. Baird Chairman of the Board and Chief Executive Officer December 4, 2000
--------------------- Principal Executive Officer)
Jerrell M. Baird
/s/ Robert G. Gwin Chief Financial Officer December 4, 2000
--------------------- Principal Financial Officer)
Robert G. Gwin
/s/ J. William Fuller Director December 4, 2000
---------------------
J. William Fuller
/s/ Jeffrey G. Korn Director December 4, 2000
---------------------
Jeffrey G. Korn
/s/ J. R. Holland Director December 4, 2000
---------------------
J. R. Holland
/s/ Charles McCosker Director December 4, 2000
---------------------
Charles McCosker
/s/ Dr. Edward Walsh Director December 4, 2000
---------------------
Dr. Edward Walsh
</TABLE>
6
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
PROSOFTTRAINING.COM
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EXHIBIT INDEX
Exhibit Number Exhibit
-------------- -------
4 Instruments Defining the Rights of Stockholders. Reference
is made to the Registrant's Registration Statement No.
000-21535 on Form 8-A12G/A, together with any exhibits
thereto, which are incorporated herein by reference pursuant
to Item 3(d) to this Registration Statement.
5 Opinion and consent of Jeffrey G. Korn.
23.1 Consent of Independent Certified Public Accountants.
23.2 Consent of Jeffrey G. Korn is contained in Exhibit 5.
24 Power of Attorney. Reference is made to the Signature Page
of this Registration Statement.
99.1 2000 Stock Incentive Plan.
99.2 2000 Employee Stock Purchase Plan.
99.3 Form of Option to Purchase Common Stock Granted to Certain
Individuals.
