<PAGE>
As filed with the Securities and Exchange Commission on December 4, 1998
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ASYMETRIX LEARNING SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 91-1276003
---------- ------------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
110-110th Avenue NE
BELLEVUE, WASHINGTON 98004
(425) 462-0501
(Address and Telephone Number of Registrant's Principal Executive Offices)
1995 COMBINED INCENTIVE AND
NONQUALIFIED STOCK OPTION PLAN
1998 EQUITY INCENTIVE PLAN
1998 DIRECTORS STOCK OPTION PLAN
(Full Title of the Plans)
JOHN D. ATHERLY
VICE PRESIDENT, FINANCE AND ADMINISTRATION AND CHIEF FINANCIAL OFFICER
ASYMETRIX LEARNING SYSTEMS, INC.
110-110TH AVENUE NE
BELLEVUE, WASHINGTON 98004
(425) 462-0501
(Name, Address and Telephone Number of Agent For Service)
Copies to:
Mark C. Stevens, Esq.
Jeffrey R. Vetter, Esq.
Jason M. Garlick, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE FEE
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 991,191 (1) $6.38 (2) $ 6,323,798.58 (2) $1,758.02
Common Stock, $0.01 par value 4,178,635 (3) $5.03 (4) $21,018,534.05 $5,843.15
Common Stock, $0.01 par value 14,573 (5) $0.91 (6) $ 13,261.43 $ 3.69
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Shares available for grant as of December 2, 1998 under the 1998 Equity
Incentive Plan and 1998 Directors Stock Option Plan.
(2) Estimated as of December 2, 1998 pursuant to Rule 457(a) solely for the
purpose of calculating the registration fee.
(3) Shares subject to outstanding options as of December 2, 1998 under the
Company's 1995 Combined Incentive and Nonqualified Stock Option Plan, 1998
Equity Incentive Plan and 1998 Directors Stock Option Plan.
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
(5) Shares subject to an outstanding option granted outside of the 1995
Combined Incentive and Nonqualified Stock Option Plan on September 11,
1997.
(6) Exercise price of such outstanding option pursuant to Rule 457(h)(1).
<PAGE>
ASYMETRIX LEARNING SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
- ------ ---------------------------------------
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The Registrant's prospectus originally filed April 1, 1998 and
declared effective June 12, 1998 pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), that
contains audited financial statements of the Registrant for the years
ended December 31, 1996 and 1997.
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A originally filed on
May 19, 1998 and declared effective June 12, 1988 under Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendment or report filed for the purpose of
updating such description.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998 filed pursuant to Section 13(a) of the Exchange Act.
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998 filed pursuant to Section 13(a) of the Exchange
Act.
All documents subsequently filed by the Registrant 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 registered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
- ------- -------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
- ------ --------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY.
- ------ ---------------------------------------------------------------------
As permitted by the Delaware General Corporation Law (the "DGCL"), the
Registrant's Amended and Restated Certificate of Incorporation includes a
provision that eliminates the personal liability of its directors for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) under section 174 of
the DGCL (regarding unlawful dividends and stock purchases) or (iv) for any
transaction from which the director derived an improper personal benefit.
As permitted by the DGCL, the Registrant's Bylaws provide that (i) the
Registrant is required to indemnify its directors and officers to the fullest
extent permitted by the DGCL, subject to certain very limited exceptions, (ii)
the Registrant may indemnify its other employees and agents to the extent that
it indemnifies its officers and directors, unless otherwise required by law, its
Amended and Restated Certificate of Incorporation, its Bylaws or agreements,
(iii) the Registrant is required to advance expenses, as incurred, to its
directors and executive officers in connection with a legal proceeding to the
fullest extent permitted by the DGCL, subject to certain very limited exceptions
and (iv) the rights conferred in the Bylaws are not exclusive.
<PAGE>
Registrant has entered into Indemnification Agreements with each of its
current directors and executive officers to give such directors and officers
additional contractual assurances regarding the scope of the indemnification set
forth in the Registrant's Amended and Restated Certificate of Incorporation and
Bylaws and to provide additional procedural protections. At present, there is no
pending litigation or proceeding involving a director, officer or employee of
the Registrant regarding which indemnification is sought, nor is the Registrant
aware of any threatened litigation that may result in claims for
indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
- ------ -----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
- ------ --------
4.01 Amended and Restated Certificate of Incorporation (incorporated
herein by reference to Exhibit 3.04 of the Registrant's
Registration Statement on Form S-1, Registration No. 333-49037
originally filed with the Commission on April 1, 1998 and declared
effective June 12, 1998 (the "Form S-1")).
4.02 Registrant's Bylaws (incorporated herein by reference to Exhibit
3.06 of the Form S-1).
4.03 Registrant's 1995 Combined Incentive and Nonqualified Stock Option
Plan and related documents (incorporated herein by reference to
Exhibit 10.03 of the Form S-1).
4.04 Registrant's 1998 Directors Stock Option Plan and related
documents (incorporated herein by reference to Exhibit 10.05 of
the Form S-1).
4.05 Registrant's 1998 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.06 of the Form
S-1).
4.06 Stock Option Agreement, dated September 11, 1997, by and between
the Registrant and Leo Lucas.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP.
23.03 Consent of Arthur Andersen LLP.
23.04 Consent of KPMG Peat Marwick LLP.
23.05 Consent of KPMG Peat Marwick LLP.
24.01 Power of Attorney (see page 5).
Item 9. 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;
(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; and
<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 (1)(i) and (1)(ii) above do not
-------- -------
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) 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 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.
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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
----
fide offering thereof.
- ----
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 provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the 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 hereby, 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.
<PAGE>
SIGNATURES
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 Bellevue, State of Washington, on this 2nd day of
December, 1998.
ASYMETRIX LEARNING SYSTEMS, INC.
By: /s/ James A. Billmaier
______________________
James A. Billmaier
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints James A. Billmaier and John D. Atherly,
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 on Form S-8, 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, 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 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 any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done or 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>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
Principal Executive Officer:
/s/ James A. Billmaier Chief Executive Officer and December 2, 1998
- ---------------------- Director
James A. Billmaier
PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER:
/s/ John D. Atherly Vice President, Finance and December 2, 1998
- ------------------- Administration and Chief Financial Officer
John D. Atherly
ADDITIONAL DIRECTORS:
/s/ Berte Kolde Chairman of the Board December 2, 1998
- ---------------
Berte Kolde
/s/ Paul G. Allen Director December 2, 1998
- -----------------
Paul G. Allen
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Shelley Harrison Director December 2, 1998
- ------------------------
Shelley Harrison, Ph. D.
/s/ Kevin Oakes President and Director December 2, 1998
- ---------------
Kevin Oakes
/s/ Ron Posner Director December 2, 1998
- --------------
Ron Posner
/s/ Gary Rieschel Director December 2, 1998
- -----------------
Gary Rieschel
</TABLE>
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit No. Description
- ---------- -----------
<S> <C>
4.01 Amended and Restated Certificate of Incorporation (incorporated
herein by reference to Exhibit 3.04 of the Form S-1).
4.02 Registrant's Bylaws (incorporated herein by reference to Exhibit
3.06 of the Form S-1).
4.03 Registrant's 1995 Combined Incentive and Nonqualified Stock Option
Plan and related documents (incorporated herein by reference to
Exhibit 10.03 of the Form S-1).
4.04 Registrant's 1998 Directors Stock Option Plan and related
documents (incorporated herein by reference to Exhibit 10.05 of
the Form S-1).
4.05 Registrant's 1998 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.06 of the Form
S-1).
4.06 Stock Option Agreement, dated September 11, 1997, by and between
the Registrant and Leo Lucas.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP.
23.03 Consent of Arthur Andersen LLP.
23.04 Consent of KPMG Peat Marwick LLP.
23.05 Consent of KPMG Peat Marwick LLP.
24.01 Power of Attorney (see page 5).
</TABLE>
<PAGE>
EXHIBIT 4.06
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"), OR UNDER ANY STATE SECURITIES LAWS. THESE SECURITIES ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT WITH RESPECT TO THESE SECURITIES UNDER THE ACT OR
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
STOCK OPTION AGREEMENT
This Stock Option Agreement is made as of September 11, 1997 by and between
Asymetrix Corporation, a Washington corporation ("Asymetrix"), and Leo Lucas, an
individual residing in the State of Washington ("Optionee").
RECITALS
A. Optionee is an employee of Asymetrix pursuant to a written Employment
Agreement made effective as of September 11, 1997.
B. Pursuant to that certain Amended and Restated Agreement and Plan of
Reorganization made as of June 24, 1997, a condition to the closing of the
merger of a subsidiary of Asymetrix with and into Aimtech Corporation, is that
Optionee be granted an option to purchase 19,431 shares of the Series 4 Class B
Stock of Asymetrix at a price per share as set forth herein.
1. GRANT OF OPTION.
Asymetrix hereby grants to Optionee, as a matter of separate agreement and not
in lieu of any other compensation for services, the right and option (the
"Option") to purchase up to an aggregate total of 19,431 shares of the Series 4
Class B Stock of Asymetrix (the "Option Shares") at a purchase price of $0.68
per share, for an aggregate exercise price for the Option Shares of $13,213.08.
Upon conversion of the Series 4 Class B Stock into Common Stock of Asymetrix
pursuant to the terms of the Statement of Designation of Rights and Preferences
of the Series 4 Class B Stock, the Option shall, to the extent not previously
exercised, automatically be converted into an option to purchase that number of
shares of Common Stock into which the Series 4 Stock would have been converted
if the Option had been exercised, with the per share exercise price for such
Common Stock being determined by dividing the number of shares of Common Stock
then subject to the Option by the aggregate exercise price for the unexercised
Option Shares immediately prior to the conversion. As used herein, Option
Shares means shares of either Series 4 Class B Stock or the Common Stock into
which such shares are converted, either before or after exercise of the Option.
-1-
<PAGE>
2. TAXES AND WITHHOLDING.
Optionee shall be responsible for the payment of all income and other taxes
related to the exercise of the Option and the sale of any Option Shares. Prior
to delivery of any Option Shares purchased upon exercise of the Option,
Asymetrix shall determine the amount of any federal or state income tax, if any,
which is required to be withheld under applicable law and shall collect from the
Optionee the amount of any such tax to the extent not previously withheld.
3. RIGHTS AS SHAREHOLDER.
The Optionee shall not have any rights as a shareholder with respect to any
shares subject to this Option until the earlier of (i) the date that a stock
certificate or such shares as to which the Optionee has exercised this Option
has been issued to the Optionee or (ii) 14 days after all steps required for the
valid exercise of this Option have been completed. Asymetrix shall issue such
certificate as expeditiously as possible.
4. SECURITIES REGULATION
(a) Compliance; Condition to Exercise. The Option Shares shall not be
---------------------------------
issued with respect to this Option unless the exercise of this Option and the
issuance and delivery of the Option Shares shall comply with all relevant
provisions of law, including, without limitation, any applicable state
securities laws, the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the shares may then be listed,
and shall further be subject to the approval of counsel for Asymetrix with
respect to such compliance. Inability of Asymetrix to obtain from any
regulatory body having jurisdiction, the authority deemed by Asymetrix's counsel
to be necessary for the lawful issuance and sale of any shares hereunder, shall
relieve Asymetrix of any liability in respect of the non-issuance or sale of
shares as to which such requisite authority shall not have been obtained.
IMPORTANT: THE OPERATION OF THE FEDERAL OR STATE SECURITIES LAWS MAY
---------
PROHIBIT THE ISSUANCE OF STOCK TO CERTAIN OPTIONEES UPON EXERCISE OF
OPTIONS UNLESS A REGISTRATION STATEMENT IS EFFECTIVE. ACCORDINGLY, THE
OPTIONEE HEREUNDER MAY NOT, UNDER CERTAIN CIRCUMSTANCES, BE ABLE TO
EXERCISE THIS OPTION AND PURCHASE STOCK WHEN THE OPTIONEE DESIRES TO DO SO.
ASYMETRIX HAS NO OBLIGATION TO FILE A REGISTRATION STATEMENT RELATING TO
THE SHARES COVERED BY THIS OPTION.
(b) Representations by Optionee. As a condition to the exercise of this
---------------------------
Option, Asymetrix may require the Optionee to represent and warrant at the time
of any such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares, if, in the
opinion of counsel for Asymetrix, such representation is
-2-
<PAGE>
required by any relevant provision of the laws referred to in Section 4(a). At
the option of Asymetrix, a stop transfer order against any shares may be placed
on the official stock books and records of Asymetrix, and a legend indicating
that the shares may not be pledged, sold or otherwise transferred unless an
opinion of counsel is provided (concurred in by counsel for Asymetrix) stating
that such transfer is not in violation of any applicable law or regulation, may
be stamped on the stock certificate in order to assure exemption from
registration. The Board of Directors may also require such other action or
agreement by the Optionee as may from time to time be necessary to comply with
the federal and state securities laws.
(c) Restrictions on Transfer. Optionee understands and acknowledges that
------------------------
the Option Shares must be held indefinitely unless a subsequent disposition
thereof is registered under the Securities Act and applicable state securities
laws or unless, in the opinion of counsel for Asymetrix, exemption from
registration and qualification are available. Optionee understands that only
Asymetrix may file a registration statement and that Asymetrix is under no
obligation to do so. Optionee understands that exemptions from registration or
qualification may not be available or may not permit Optionee to transfer the
Option Shares in the amounts or at the times proposed by Optionee. The
financial condition of Optionee is such that Optionee is able to bear all risks
of holding the Option Shares for an indefinite period of time.
5. MARKET STAND-OFF.
Optionee will not, to the extent requested by Asymetrix or an underwriter of
securities of Asymetrix, sell or otherwise transfer or dispose of any Option
Shares then owned by the Optionee (other than to donees of the Optionee who
agree to be similarly bound) for up to one hundred eighty (180) days following
the effective date of any registration statement (other than a registration
statement relating to any employee benefit plan or to any acquisition, merger,
consolidation or other corporate reorganization) of Asymetrix filed under the
Securities Act of 1933, as amended; provided, however, that:
-------- -------
(i) such agreement shall not apply to Option Shares sold pursuant to such
registration statement;
(ii) all executive officers and directors of Asymetrix then holding
Asymetrix Common Stock enter into a similar agreement, and any other Asymetrix
stockholder owning at least as many shares of Asymetrix Common Stock as the
Optionee is also requested by Asymetrix or the underwriter to enter into a
similar agreement; and
(iii) in an offering other than Asymetrix's initial public offering, such
agreement shall apply only for a period of 90 days from the effective date of
the registration statement filed under the Securities Act with respect thereto.
In order to enforce the foregoing covenant, Asymetrix shall have the right to
place restrictive legends on the certificates representing the Option Shares
subject to this Section and to impose stop transfer instructions with respect to
the Option Shares until the end of such period.
-3-
<PAGE>
6. OPTION ADJUSTMENTS.
The aggregate number of Option Shares and the exercise price per share thereof
(but not the aggregate exercise price for all unexercised Option Shares) shall
each be proportionately adjusted for any increase or decrease in the number of
issued shares of Series 4 Class B Stock (or, after conversion thereof, Common
Stock) of Asymetrix resulting from a split-up or consolidation of shares or any
like capital adjustment, or the payment of any stock dividend, or any other
increase or decrease in the number of shares of Series 4 Class Stock (or, after
conversion thereof, Common Stock) of Asymetrix without the receipt of
consideration by Asymetrix. In the event of any adjustment in the number of
shares covered by any option, any fractional shares resulting from such
adjustment shall be disregarded and each such option shall cover only the number
of full shares resulting from such adjustment.
7. TERM OF OPTION.
(a) Term. This Option shall expire and shall to the extent not previously
----
exercised no longer be exercisable on the earlier to occur of the following:
(i) September 10, 2007; or
(ii) immediately prior to the closing of (1) any consolidation or
merger of the Company with or into any other corporation or corporations in
which the holders of the Company's outstanding shares immediately before such
consolidation or merger do not, immediately after such consolidation or merger,
retain stock representing a majority of the voting power of the surviving
corporation of such consolidation or merger or stock representing a majority of
the voting power of a corporation that wholly owns, directly or indirectly, the
surviving corporation of such consolidation or merger; (2) the sale, transfer or
assignment of securities of the Company representing a majority of the voting
power of all the Company's outstanding voting securities by the holders thereof
to an acquiring party in a single transaction or series of related transactions;
(3) any other sale, transfer or assignment of securities of the Company
representing over fifty percent (50%) of the voting power of the Company's then
outstanding voting securities by the holders thereof to any acquiring party; or
(4) the sale of all or substantially all the Company's assets.
(b) Survival. The provisions of Sections 4(c), 5 and 8 shall survive the
--------
termination or expiration of the Option as to all Option shares with respect to
which the Option was exercised prior to its termination or expiration.
8. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed in all respects by the
-------------
laws of the State of Washington as such laws are applied to agreements between
Washington residents entered into and to be performed entirely within
Washington. Venue of any action to enforce this Agreement shall be in the state
or federal courts located in King County, Washington, and the parties hereby
submit to the jurisdiction of such courts.
-4-
<PAGE>
(b) Successors and Assigns. Except as otherwise expressly provided in
----------------------
this Agreement, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, the successors, heirs, permitted assigns, transferees and
administrators of the parties to this Agreement.
(c) Entire Agreement. This Agreement contains all the agreements,
----------------
understandings, representations, conditions, warranties and covenants, and
constitutes the sole and entire agreement between the parties hereto pertaining
to the subject matter hereof and supersedes all prior communications or
agreements, written or oral, other than any confidentiality or non-disclosure
agreements. This Agreement may not be modified except by written instrument
signed by each party.
(d) Notices. All notices, requests, demands or other communications which
-------
are required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given (i) on the date of delivery
if delivered by hand or by confirmed facsimile, (ii) upon the third day after
such notice is deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested, or (iii) upon the
date of the courier's verification of delivery at the specified address if sent
by a nationally recognized overnight express courier. Notices shall be made to
the addresses set forth on the signature page or such other address as may be
specified by notice hereunder.
(e) Delays or Omissions. It is agreed that no delay or omission to
-------------------
exercise any right, power or remedy accruing to either party upon any breach of
default of the other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default therefore or thereafter
occurring.
(f) Attorney's Fees. The prevailing party in any litigation concerning
---------------
this Agreement shall be entitled to the costs of collections and enforcement,
including but not limited to reasonable attorney's fees, court costs and all
reasonable and necessary expenses.
(g) Injunctive Relief. Optionee acknowledges that the breach, or
-----------------
threatened breach, of Section 5 of this Agreement could give rise to irreparable
injury to Asymetrix which would be inadequately compensated in money damages.
Accordingly, Asymetrix may seek and obtain a restraining order and/or an
injunction prohibiting the breach, or threatened breach, of any provision of
this Agreement, in addition to, and not in limitation of, any other legal
remedies which may be available to Asymetrix.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
ASYMETRIX CORPORATION
By: /s/ James Billmaier /s/ Leo Lucas
------------------------------- -----------------------------
LEO LUCAS
Name: James Billmaier
-----------------------------
Title: CEO
----------------------------
110 - 110th Avenue NE Address: 1722 232 Ave NE
Bellevue, WA 98004 -----------------------------
Attn.: General Counsel Redmond, WA 98053
-----------------------------
-6-
<PAGE>
EXHIBIT 5.01
------------
December 1, 1998
Asymetrix Learning Systems, Inc.
110 - 110th Avenue, NE
Bellevue, WA 98004
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission (the "Commission") on or about December 2, 1998 in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 5,184,399 shares of your Common Stock (the "Stock"), subject
to issuance by you upon the exercise of options granted or to be granted under
your 1995 Combined Incentive and Nonqualified Stock Option Plan (the "1995
Plan"), 1998 Equity Incentive Plan (the "Equity Plan"), 1998 Directors Stock
Option Plan (the "Directors Plan") and Stock Option Agreement by and between you
and Leo Lucas (the "Lucas Option" and collectively, the "Option Plans"). In
rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File Number 333-49037), filed
with the Commission and declared effective on June 12, 1998, together
with the Exhibits filed as a part thereof, including without
limitation the 1995 Plan, Directors Plan, Equity Plan and related
grant and exercise form agreements;
(2) the Lucas Option filed as an Exhibit to the Registration Statement;
(3) your registration statement on Form 8-A (File Number 000-24289) filed
with the Commission on May 19, 1998 and declared effective on June 12,
1998;
(4) the Registration Statement, together with the Exhibits filed as a part
thereof;
(5) the Prospectuses prepared in connection with the Registration
Statement;
(6) the minutes of meetings and actions by written consent of your
stockholders and Board of Directors that are contained in your minute
books and the minute books of your predecessor, Asymetrix Learning
Systems, Inc., a Washington corporation ("Asymetrix Washington"), that
are in our possession;
<PAGE>
Asymetrix Learning Systems, Inc.
December 1, 1998
Page 2
(7) a list of option holders respecting your capital stock that was
prepared by you and dated December 1, 1998; and
(8) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the lack
of any undisclosed terminations, modifications, waivers or amendments to any
documents reviewed by us and the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information included in the documents referred
to above. We have made no independent investigation or other attempt to verify
the accuracy of any of such information or to determine the existence or non-
existence of any other factual matters; however, we are not aware of any facts
-------
that would lead us to believe that the opinion expressed herein is not accurate.
Based upon the foregoing, it is our opinion that the 5,184,399 shares of
Stock that may be issued and sold by you upon the exercise of options granted or
to be granted under the Option Plans, when issued and sold in accordance with
the respective Option Plan and purchase agreements to be entered into
thereunder, and in the manner referred to in the Prospectuses associated with
the Registration Statement, will be validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectuses prepared in connection therewith and
any amendments thereto.
This opinion speaks only as of its date and is intended solely for your use
as an exhibit to the Registration Statement for the purpose of the above sale of
the Stock and is not to be relied upon for any other purpose.
Very truly yours,
/s/ Fenwick & West LLP
Fenwick & West LLP
<PAGE>
Exhibit 23.02
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1995 Combined Incentive and Nonqualified Stock
Option Plan, the 1998 Equity Incentive Plan, and the 1998 Directors Stock
Option Plan, of Asymetrix Learning Systems, Inc. of our reports dated April
23, 1997, with respect to the consolidated financial statements and schedule
of Asymetrix Learning Systems, Inc. for the year ended December 31, 1996,
included in Pre-Effective Amendment No. 3 to the Registration Statement (Form
S-1 No. 333-49037) and related Prospectus of Asymetrix Learning Systems, Inc.,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Seattle, Washington
December 2, 1998
<PAGE>
Exhibit 23.03
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report, dated May 9,
1997, covering the audited financial statements of AimTech Corporation and
Subsidiaries as of December 31, 1996 and for the year then ended, included in
Asymetrix Learning Systems, Inc.'s Registration Statement (File No. 333-49037)
and to all references to our Firm included in or made a part of this
Registration Statement.
/S/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
December 2, 1998
<PAGE>
Exhibit 23.04
[LETTERHEAD OF KPMG PEAT MARWICK LLP APPEARS HERE]
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Asymetrix Learning Systems, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Asymetrix Learning Systems, Inc. of our reports dated March 27, 1998,
except as to note 12 which is as of June 10, 1998, relating to the
consolidated balance sheets of Asymetrix Learning Systems, Inc. and
subsidiaries as of December 31, 1997, and the related consolidated statements
of operations, stockholders' equity, and cash flows for the year ended
December 31, 1997, and related financial statement schedule, which reports
appear in Amendment No. 3 of the registration statement (No. 333-49037) on
Form S-1 of Asymetrix Learning Systems, Inc.
/s/ KPMG Peat Marwick LLP
Seattle, Washington
December 2, 1998
<PAGE>
Exhibit 23.05
[LETTERHEAD OF KPMG PEAT MARWICK LLP APPEARS HERE]
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Asymetrix Learning Systems, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Asymetrix Learning Systems, Inc. of our report dated December 19, 1997
relating to the balance sheets of Communication Strategies, Inc. as of December
31, 1996 and September 30, 1997, and the related statements of income and
retained earnings and cash flows for the year ended December 31, 1996 and the
nine-month period ended September 30, 1997, which report appears in Amendment
No.3 of the registration statement (No. 333-49037) on Form S-1 of Asymetrix
Learning Systems, Inc.
/s/ KPMG Peat Marwick LLP
Dallas, Texas
December 2, 1998
