<PAGE>
As filed with the Securities and Exchange Commission on September 16, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
SCIENTIFIC LEARNING CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 94-3234458
(State of Incorporation) (I.R.S. Employer Identification No.)
--------------------
1995 UNIVERSITY AVENUE, SUITE 400
BERKELEY, CA 94704
(Address of principal executive offices)
--------------------
1999 EQUITY INCENTIVE PLAN
1999 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
SHERYLE J. BOLTON
CHIEF EXECUTIVE OFFICER
1995 UNIVERSITY AVENUE, SUITE 400
BERKELEY, CA 94704
(510) 665-9700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copies to:
JEFFREY S. ZIMMAN, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111
(415) 693-2000
--------------------
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
PROPOSED
MAXIMUM
AMOUNT TO PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE BE OFFERING PRICE OFFERING PRICE REGISTRATION
REGISTERED REGISTERED PER SHARE (1) (1) FEE
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock, 1,546,304 $4.86(1)(a) $7,515,037.40 $2,089.18
par value $.001 per share,
issuable pursuant to
outstanding options under
the 1999 Equity Incentive
Plan
- --------------------------------------------------------------------------------------------
Shares of Common Stock, 353,973 $19.125(1)(b) $6,769,733.60 $1,881.99
par value $.001 per share,
reserved for future grant
under the 1999 Non-Officer
Equity Incentive Plan
- --------------------------------------------------------------------------------------------
Shares of Common Stock, 5,000 $16.00(1)(a) $80,000.00 $22.24
par value $.001 per share,
issuable pursuant to
outstanding options under
the 1999 Non-Employee
Directors Stock Option
Plan
- --------------------------------------------------------------------------------------------
Shares of Common Stock, 70,000 $19.125(1)(b) $1,338,750.00 $372.17
par value $.001 per share,
reserved for future grant
under the 1999 Non-
Employee Directors Stock
Option Plan
- --------------------------------------------------------------------------------------------
Shares of Common Stock, 350,000 $19.125(1)(b) $6,693,750.00 $1,860.86
par value $.001 per share,
reserved for future
issuance under the 1999
Employee Stock Purchase
Plan
- --------------------------------------------------------------------------------------------
Totals 2,325,277 $4.86 -- $19.125 $22,397,271.00 $6,226.44
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price, for shares subject to
options previously granted under the Scientific Learning Corporation
("Registrant" or "Company") 1999 Equity Incentive Plan and 1999 Non-Employee
Directors' Stock Option Plan (pursuant to Rule 457(h) under the Securities Act
of 1933, as amended (the "Act")) and (b) the average of the high and low prices
of the Company's Common Stock as reported on the Nasdaq National Market on
September 13, 1999 for shares available for grant pursuant to the 1999 Equity
Incentive Plan, 1999 Non-Employee Directors' Stock Option Plan and 1999 Employee
Stock Purchase Plan (pursuant to Rule 457(c) under the Act).
2.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Scientific Learning Corporation (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of 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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company has entered into indemnity agreements with each of its
directors and executive officers. The form of indemnity agreement provides that
the Company will indemnify against any and all expenses of the director or
executive officer who incurred expenses because of his or her status as a
director or executive officer, to the fullest extent permitted by the Company's
bylaws.
The Company's certificate of incorporation and bylaws contain provisions
relating to the limitation of liability and indemnification of directors and
officers. The certificate of incorporation provides that directors will not be
personally liable to the Company or its stockholders for monetary damages for
any breach of fiduciary duty as a director, except for liability: (1) for any
breach of the directors' duty of loyalty to us or the Company's stockholders;
(2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (3) in respect of certain unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the Delaware General Corporation Law; or (4) for any
transaction from which the director derives any improper personal benefit. The
certificate of incorporation also provides that if the Delaware General
Corporation Law is amended after the approval by the Company's stockholders of
the certificate of incorporation to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of the directors will be eliminated or limited to the fullest extent permitted
by the Delaware law. In addition, as permitted by Section 145 of the Delaware
General Corporation Law, the Company's bylaws provide that the Company will
indemnify its directors and executive officers and may indemnify other officers,
employees and other agents of the Company to the fullest extent not prohibited
by Delaware law. These provisions do not affect a director's responsibilities
under any other laws, such as the federal securities laws or state or federal
environmental laws. The Company has purchased a directors' and officers'
liability insurance policy providing coverage up to specified
3.
<PAGE>
amounts for losses incurred by the Company, its directors or officers in
connection with specified claims against them, including specified claims under
state and federal securities laws.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
CONSULTANTS AND ADVISORS
Not applicable.
4.
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1 1999 Equity Incentive Plan and forms of grant thereunder (1)
99.2 1999 Non-Employee Directors' Stock Option Plan and forms of grant
thereunder (2)
99.3 1999 Employee Stock Purchase Plan and form of offering thereunder.
(3)
</TABLE>
(1) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-77133) on April 27, 1999, and incorporated herein by reference.
(2) Filed as an exhibit to Amendment No. 1 to the Form S-1 Registration
Statement (Registration No. 333-77133) on May 28, 1999, and incorporated herein
by reference.
(3) 1999 Employee Stock Purchase Plan filed as an exhibit to the Form S-1
Registration Statement (Registration No. 333-77133) on April 27, 1999, and
incorporated herein by reference. Form of offering thereunder filed as an
exhibit to Amendment No. 4 to the Form S-1 Registration Statement (Registration
No. 333-77133) on July 16, 1999, and incorporated herein by reference.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of 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) (Section 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;
5.
<PAGE>
(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)(i) and (a)(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 issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
6.
<PAGE>
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 Berkeley, County of Alameda, State of California, on
September 15, 1999.
SCIENTIFIC LEARNING CORPORATION
By: /s/ Frank M. Mattson
-----------------------------------
Frank M. Mattson
Chief Financial Officer, Vice President,
Finance and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Sheryle J. Bolton and Frank M. Mattson,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, 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
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Sheryle J. Bolton President, Chief Executive September 15, 1999
---------------------------- Officer and Director
(SHERYLE J. BOLTON) (Principal Executive
Officer)
Chief Scientific Officer ___________, 1999
---------------------------- and Director
(DR. MICHAEL M. MERZENICH)
/s/ Dr. Paula A. Tallal Executive Vice President September 15, 1999
---------------------------- and Chairman of the Board
(DR. PAULA A. TALLAL) of Directors
/s/ Frank M. Mattson Chief Financial Officer, September 15, 1999
---------------------------- Vice President, Finance
(FRANK M. MATTSON) and Secretary (Principal
Financial and Accounting
Officer)
7.
<PAGE>
/s/ Carleton A. Holstrom Director September 15, 1999
----------------------------
(CARLETON A. HOLSTROM)
/s/ Rodman W. Moorhead, III Director September 15, 1999
----------------------------
(RODMAN W. MOORHEAD, III)
/s/ James E. Thomas Director September 15, 1999
----------------------------
(JAMES E. THOMAS)
/s/ David A. Tanner Director September 15, 1999
----------------------------
(DAVID A. TANNER)
</TABLE>
8.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBERS
<S> <C> <C>
5.1 Opinion of Cooley Godward LLP 10
23.1 Consent of Ernst & Young LLP, Independent Auditors 11
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to 10
this Registration Statement
24.1 Power of Attorney is contained on the signature pages. 7
99.1 1999 Equity Incentive Plan and forms of grant thereunder (1) --
99.2 1999 Non-Employee Directors' Stock Option Plan and forms of --
grant thereunder (2)
99.3 1999 Employee Stock Purchase Plan and form of offering --
thereunder (3)
</TABLE>
(1) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-77133) on April 27, 1999, and incorporated herein by reference.
(2) Filed as an exhibit to Amendment No. 1 to the Form S-1 Registration
Statement (Registration No. 333-77133) on May 28, 1999, and incorporated herein
by reference.
(3) 1999 Employee Stock Purchase Plan filed as an exhibit to the Form S-1
Registration Statement (Registration No. 333-77133) on April 27, 1999, and
incorporated herein by reference. Form of offering thereunder filed as an
exhibit to Amendment No. 4 to the Form S-1 Registration Statement (Registration
No. 333-77133) on July 16, 1999, and incorporated herein by reference.
9.
<PAGE>
Exhibit 5.1
September 15, 1999
Scientific Learning Corporation
1995 University Avenue, Suite 400
Berkeley, CA 94704
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Scientific Learning Corporation (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of up to 2,325,277
shares of the Company's Common Stock, $.001 par value, (the "Shares") pursuant
to its 1999 Equity Incentive Plan, 1999 Non-Employee Directors' Stock Option
Plan and 1999 Employee Stock Purchase Plan (collectively, the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related Prospectuses, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Jeffrey S Zimman
----------------------------
Jeffrey S. Zimman
JSZ:wp
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1999 Equity Incentive Plan, 1999 Non-Employee Directors'
Stock Option Plan and the 1999 Employee Stock Purchase Plan of Scientific
Learning Corporation of our report dated January 15, 1999 with respect to the
financial statements of Scientific Learning Corporation as of December 31, 1997
and 1998 and for each of the three years in the period ended December 31, 1998
included in the Registration Statement (Form S-1, No. 333-77133), as amended,
and the related Prospectus of Scientific Learning Corporation, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Walnut Creek, California
September 14, 1999
