As filed with the Securities and Exchange Commission on
August 10, 1998
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CALIBER LEARNING NETWORK, INC.
(Exact name of registrant as specified in its charter)
Maryland 52-2001020
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3600 Clipper Mill Road
Suite 300
Baltimore, Maryland 21211
(Address of principal executive offices) (Zip Code)
CALIBER LEARNING NETWORK, INC. 1998 STOCK INCENTIVE PLAN
(Full title of plan)
(Name, address and telephone
number of agent for service) (Copy to:)
Chris L. Nguyen Richard C. Tilghman, Jr., Esquire
Caliber Learning Network, Inc. Piper & Marbury L.L.P.
3600 Clipper Mill Road, Suite 300 36 South Charles Street
Baltimore, Maryland 21211 Baltimore, Maryland 21201
(410) 843-1000 (410) 539-2530
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Per Offering Registration
to be Registered Registered Unit(2) Price(2) Fee(2)
- -------------------------------------------------------------------------------
Common Stock, $.01
par value(1) 1,043,290 $9.6875 $10,106,871 $2,982
================================================================================
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number of
shares of Common Stock that may be offered or issued by reason of stock splits,
stock dividends or similar transactions.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and (h). The proposed maximum offering price per share, proposed
maximum aggregate offering price and the amount of the registration fee are
based on the average of the high and low prices of Caliber Learning Network,
Inc. Common Stock reported on the Nasdaq National Market on August 4, 1998
(i.e., $9.6875).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be included in this Form S-8 Registration Statement pursuant to
introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the Registrant with
the Securities and Exchange Commission (the "Commission")are incorporated
herein by reference:
(a) Prospectus filed pursuant to Rule 424(b) on May 5, 1998 and
Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"),
since the end of the fiscal year covered by the document
referred to in (a) above; and
(c) Description of Common Stock of the Registrant contained or
incorporated in the registration statements filed by the
Registrant under the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
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 remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part of this Registration Statement from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legal validity of the shares of Common Stock offered by the
Registrant pursuant to this Registration Statement is being passed upon by Piper
& Marbury L.L.P., counsel for the Registrant.
<PAGE>
Item 6. Indemnification of Directors and Officers.
As permitted by the Maryland General Corporation Law ("MGCL"), Article
Eighth, Paragraph (5) of the Registrant's Amended and Restated Charter
("Registrant's Charter") provides for indemnification of directors and officers
of the Registrant, as follows:
The Corporation shall indemnify (A) its directors and officers, whether
serving the Corporation or at its request any other entity, to the full
extent required or permitted by the General Laws of the State of
Maryland now or hereafter in force, including the advance of expenses
under the procedures and to the full extent permitted by law and (B)
other employees and agents to such extent as shall be authorized by the
Board of Directors or the Corporation's By-Laws and be permitted by
law. The foregoing rights of indemnification shall not be exclusive of
any other rights to which those seeking indemnification may be
entitled. The Board of Directors may take such action as is necessary
to carry out these indemnification provisions and is expressly
empowered to adopt, approve and amend from time to time such by-laws,
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment
of the charter of the Corporation or repeal of any of its provisions
shall limit or eliminate the right to indemnification provided
hereunder with respect to acts or omissions occurring prior to such
amendment or repeal.
Also, the Registrant's By-Laws contain indemnification procedures that
implement the indemnification provisions of the Registrant's Charter. The MGCL
permits a corporation to indemnify its directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceedings to which they may
be a party by reason of their service in those or other capacities, unless it is
established that (a) the act or omission of the director or officer was material
to the matter giving rise to such proceedings and (i) was committed in bad faith
or (ii) was the result of active and deliberate dishonesty, (b) the director or
officer actually received an improper personal benefit in money, property or
services, or (c) in the case of any criminal proceedings, the director or
officer had reasonable cause to believe that the action or omission was
unlawful.
As permitted by the MGCL, Article Eighth, Paragraph (6) of the
Registrant's Charter provides for limitation of liability of directors and
officers of the Registrant, as follows:
To the fullest extent permitted by Maryland statutory or decisional
law, as amended or interpreted, no director or officer of this
Corporation shall be personally liable to the Corporation or its
stockholders for money damages. No amendment of the charter of the
Corporation or repeal of any of its provisions shall limit or eliminate
the limitation on liability provided to directors and officers
hereunder with respect to any act or omission occurring prior to such
amendment or repeal.
The MGCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that
(i) the person actually received an improper benefit or profit in money,
property or services or (ii) a judgment or other final adjudication is entered
in a proceeding based on a finding that the person's action, or failure to act,
was the result of active and deliberate dishonesty and was material to the cause
of action adjudicated in the proceeding.
As permitted under Section 2-418(k) of the MGCL, the Registrant has
purchased and maintains insurance on behalf of its directors and officers
against any liability asserted against such directors and officers in their
capacities as such, whether or not the Registrant would have the power to
indemnify such persons under the provisions of Maryland law governing
indemnification.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------
4.1 Articles of Amendment and Restatement of the Charter (incorporated
by reference from Exhibit 3.01 of the Company's Registration State-
ment on Form S-1 dated March 9, 1998 (No. 333-47565), as amended)
4.2 By-Laws (incorporated by reference from Exhibit 3.02 of the
Company's Registration Statement on Form S-1 dated March 9, 1998
(No. 333-47565), as amended)
4.3 1998 Stock Incentive Plan (incorporated by reference from Exhibit
10.01(b) of the Company's Registration Statement on Form S-1 dated
March 9, 1998 (No.333-47565), as amended)
5.0 Opinion of Piper & Marbury L.L.P., counsel for the Registrant,
regarding the legal validity of the shares of Common Stock being
registered for issuance under the Plan
23.1 Consent of Counsel (contained in Exhibit 5.0)
23.2 Consent of Independent Auditors
24.0 Power of Attorney (included on Signature Page)
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 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 this 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.
<PAGE>
Paragraphs (l)(i) and (l)(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 by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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 of 1933 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.
<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 Baltimore, State of Maryland on the 20th day of
July, 1998.
CALIBER LEARNING NETWORK, INC.
By: /s/ Chris L. Nguyen
-------------------------------
Chris L. Nguyen
President and Chief Executive
Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Rick
P.Frier and Matthew C. Brenneman as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, to sign any or all
further 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 attorney-in-fact and agent, 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 attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ------- -------
/s/ R. Christopher Hoehn Saric Chairman of the August 10, 1998
- ------------------------------- Board of Directors
R. Christopher Hoehn-Saric
/s/ Douglas L. Becker Vice Chairman of the July 29, 1998
- ------------------------------- Board of Directors
Douglas L. Becker
/s/ Chris L. Nguyen President and Chief July 20, 1998
- ------------------------------- Executive Officer
Chris L.Nguyen (Principal Executive Officer)
/s/ Rick P.Frier Vice President and July 17, 1998
- ------------------------------- Chief Financial Officer
Rick P. Frier (Principal Financial and
Accounting Officer)
/s/ Susan Mayer Director July 13, 1998
- -------------------------------
Susan Mayer
<PAGE>
Signature Title Date
- --------- ------- -------
/s/ John P.Hill Director August 10, 1998
- -------------------------------
John P. Hill
/s/ Janeen M. Armstrong Director August 10, 1998
- -------------------------------
Janeen M. Armstrong
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION PAGE
- -------- ------------ ----
4.1 Articles of Amendment and Restatement of the
Charter (incorporated by reference from Exhibit 3.01
of the Company's Registration Statement on Form S-1 --
dated March 9, 1998 (No. 333-47565), as amended)
4.2 By-Laws (incorporated by reference from Exhibit 3.02
of the Company's Registration Statement on Form S-1 --
dated March 9, 1998 (No. 333-47565), as amended)
4.3 1998 Stock Incentive Plan (incorporated by reference
from Exhibit 10.01(b) of the Company's Registration --
Statement on Form S-1 dated March 9, 1998 (No.333-47565),
as amended)
5.0 Opinion of Piper & Marbury L.L.P., counsel for the
Registrant, regarding the legal validity of the shares 9
of Common Stock being registered for issuance under
the Plan
23.1 Consent of Counsel (contained in Exhibit 5.0) --
23.2 Consent of Independent Auditors 10
24.0 Power of Attorney (included on Signature Page) --
<PAGE>
EXHIBIT 5.0
PIPER & MARBURY
L.L.P.
CHARLES CENTER SOUTH
36 SOUTH CHARLES STREET
BALTIMORE, MARYLAND 21201-3010
410-539-2530 WASHINGTON
FAX: 410-539-0489 NEW YORK
PHILADELPHIA
EASTON
August 10, 1998
Caliber Learning Network, Inc.
3600 Clipper Mill Road
Suite 300
Baltimore, Maryland 21211
Ladies and Gentlemen:
We have acted as counsel to Caliber Learning Network, Inc., a Maryland
corporation (the "Company") in connection with the preparation and filing with
the Securities and Exchange Commission of a registration statement on Form S-8
(the "Registration Statement") registering 1,043,290 shares of Common Stock, par
value $.01 per share (the "Plan Shares"), issuable pursuant to the exercise of
stock options or other awards granted under the 1998 Stock Incentive Plan (the
"Plan").
We have examined copies of the Company's Amended and Restated
Certificate of Incorporation, By-Laws, the Plan, all resolutions adopted by the
Company's Board of Directors relating to the above and other records and
documents that we have deemed necessary for the purpose of this opinion. We have
also examined such other documents, papers, statutes and authorities as we have
deemed necessary to form a basis for this opinion. In our examination, we have
assumed the genuineness of all signatures and the conformity to original
documents of all copies submitted to us. As to various questions of fact
material to this opinion, we have relied on statements and certificates of
officers and representatives of the Company and others.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Maryland.
2. The Plan Shares issuable under the Plan have been
duly authorized and will be (when issued, sold and delivered as
authorized) validly issued, fully paid and non-assessable.
The opinions set forth herein are limited to matters governed by the
laws of the State of Maryland and the Federal Laws of the United States of
America, and we express no opinion as to any other laws.
We hereby consent to the filing of this opinion as Exhibit 5.0 to the
Registration Statement and to the reference to us under Item 5 of this
Registration Statement.
Very truly yours,
/s/ Piper & Marbury L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 333-______) pertaining to the Caliber Learning Network,
Inc. 1998 Stock Incentive Plan of our report dated March 5, 1998 (except Note
16, as to which the date is April 10, 1998), with respect to the financial
statements of Caliber Learning Network, Inc. included in its Registration
Statement (Form S-1 No. 333-47565) filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Baltimore, Maryland
August 6, 1998
