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As filed with the Securities and Exchange Commission on June 30, 2000.
Registration No. ____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
SONIC FOUNDRY, INC.
(Exact name of registrant as specified in its charter)
Maryland 39-1783372
(State of Incorporation) (I.R.S. Employer Identification No.)
754 Williamson Street
Madison, WI 53703
(Address of principal executive offices) (Zip Code)
Sonic Foundry, Inc. Employee Stock Purchase Plan
(Full title of the plan)
Rimas Buinevicius
Chairman and Chief Executive Officer
Sonic Foundry, Inc.
754 Williamson Street
Madison, WI 53703
(608) 256-3133
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Frederick H. Kopko, Jr. Esq.
McBreen & Kopko
20 N. Wacker Dr., Suite 2520
Chicago, IL 60606
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (1) offering price aggregate Registration
per share (2) offering price fee
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Employee Stock 1,000,000 shares $18.1250 $18,125,000 $4,785.00
Purchase Plan
Common Stock
$0.01 par value
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Sonic Foundry, Inc. Employee Stock Purchase
Plan.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h). The price is based upon the closing sale price of Sonic
Foundry, Inc. Common Stock on June 29, 2000 as reported on the Nasdaq National
Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The documents listed in (a) through (c) below are incorporated by
reference in this registration statement and all documents subsequently filed by
the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the registration statement and to be part
thereof from the date of filing of such documents.
(a) The registrant's latest annual report on Form 10/K for the fiscal
year ended September 30, 1999.
(b) The registrant's quarterly reports on Form 10-Q for the fiscal
quarters ended December 31, 1999 and March 31, 2000, current reports on Form 8-K
filed on February 15, 2000, April 18, 2000, and April 20, 2000, a current report
on Form 8-K/A filed on June 19, 2000, and all other reports filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the registrant document referred to in (a) above.
(c) The description of the class of securities contained in the
registrant's Exchange Act Registration Statement on Form 8-A, filed on April 20,
2000.
Item 5. Interests of Named Experts and Counsel.
Legal Matters. The legality of the issuance of the shares offered in
this prospectus will be passed upon for the registrant by McBreen & Kopko,
Chicago, Illinois. Frederick H. Kopko, Jr., a member of that firm and a director
of the registrant, beneficially owns 183,192 shares of the registrant's Common
Stock and has options and warrants to purchase 140,000 shares of the
registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the registrant limit the liability of
directors, in their capacity as directors but not in their capacity as officers,
to the fullest extent permitted by the Maryland General Corporation Law, or
MGCL. Accordingly, pursuant to the terms of the MGCL as presently in effect, the
registrant may indemnify any director unless it is established that:
. the act or omission of the director was material to the matter
giving rise to the proceeding and was committed in bad faith or
was the result of active and deliberate dishonesty;
. the director actually received an improper personal benefit in
money, property or services;
. or in the case of any criminal proceeding, the director had
reasonable cause to believe that the act or omission was
unlawful.
In addition, the Bylaws of the registrant require the registrant to
indemnify each person who is or was, a director, officer, employee or agent of
the registrant to the fullest extent permitted by the laws of the State of
Maryland in the event he is involved in legal proceedings by reason of the fact
that he is or was a director, officer, employee or agent of the registrant, or
is or was serving at the request of the registrant as a director, officer,
employee or agent of another corporation, partnership or other enterprise. The
registrant may also advance to such persons expenses incurred in defending a
proceeding to which indemnification might apply, upon terms and conditions, if
any, deemed appropriate by the Board of Directors upon receipt of an undertaking
by or on behalf of such director or officer to repay all such advanced amounts
if it is ultimately determined that he is not entitled to be indemnified as
authorized by the laws of the State of Maryland. In addition, the registrant
carries director and officer liability insurance.
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Item 8. Exhibits
Exhibit Number
5 Opinion of McBreen & Kopko, regarding the legality of the
securities
23 Consent of Ernst & Young LLP
24 Power of Attorney
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 Act;
(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 a
prospectus filed with the Commission pursuant to Rule 424(b) 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.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
2. That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
registrant
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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 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.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, 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 Madison, State of Wisconsin, on this 27th day of
June, 2000.
SONIC FOUNDRY, INC.
By:
/s/ Rimas P. Buinevicius
-----------------------------
Rimas P. Buinevicius,
Chairman, Chief Executive
Officer and Director
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Stock Option Committee has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Madison, State of Wisconsin, on this 27th day of June, 2000.
SONIC FOUNDRY, INC. EMPLOYEE STOCK PURCHASE PLAN
By:
David C. Kleinman
-----------------------------
On behalf of the Stock Option Committee
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EXHIBIT INDEX
Exhibit Number Description
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5 Opinion of McBreen & Kopko, regarding the legality of the
securities
23 Consent of Ernst & Young LLP
24 Power of Attorney
