As filed with the Securities and Exchange Commission on May 6, 1999
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. 1997 STOCK OPTION PLAN
CALIBER LEARNING NETWORK, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of plans)
(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
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Proposed
Amount Maximum Maximum Amount of
to be Offering Aggregate Registration
Title of Securities to be Registered Registered Price Per Unit (3) Offering Price (3) Fee (3)
- -------------------------------------------------------------------------------------------------------------------------
======================================----------------------------------------------------------=========================
Common Stock, $.01 par value 1,427,400 (1)(2) $4.0625 $5,798,813 $1,613
======================================----------------------------------------------------------=========================
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(1) In addition, pursuant to Rule 416(c) 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 and an indeterminate number
of plan participation interests to be offered or sold pursuant to the 1999
Employee Stock Purchase Plan.
(2) 1,227,400 shares are issuable with respect to the 1997 Stock Option Plan
and 200,000 shares are issuable with respect to the 1999 Employee Stock
Purchase Plan.
(3) 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 daily high and low sale
prices of Caliber Learning Network, Inc. Common Stock reported on the
Nasdaq National Market on May 3, 1999 (i.e., $4.0625). Pursuant to Rule
457(h)(2), no separate registration fee is provided for the participation
interests in the 1999 Employee Stock Purchase Plan.
<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) Annual Report on Form 10-K for the fiscal year ended December 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.
None.
Item 6. Indemnification of Directors and Officers.
As permitted by the Maryland General Corporation Law ("MGCL"), Article
Eighth, Paragraph (5) of the Company's Amended and Restated Charter provides for
indemnification of directors and officers of the Company, 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
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<PAGE>
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 Company's By-Laws contain indemnification procedures that
implement the indemnification provisions of the 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 Company's
Charter provides for limitation of liability of directors and officers of the
Company, 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 Company 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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<PAGE>
EXHIBIT
NUMBER DESCRIPTION
4.1 Articles of Amendment and Restatement of the Charter
(incorporated by reference to the Company's Registration
Statement on Form S-1, as amended (File No. 333-47565))
4.2 By-Laws (incorporated by reference to the Company's Registration
Statement on Form S-1, as amended (File No. 333-47565))
4.3 1997 Stock Option Plan (incorporated by reference to the
Company's Registration Statement on Form S-1, as amended (File
No. 333-47565))
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 Plans (filed herewith)
23.1 Consent of Counsel (contained in Exhibit 5.0)
23.2 Consent of Independent Auditors (filed herewith)
24.0 Power of Attorney (filed herewith)
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.
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.
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(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.
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<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 4th day of May,
1999.
CALIBER LEARNING NETWORK, INC.
By: /s/ Chris L. Nguyen
----------------------------------
Chris L. Nguyen
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Administrator of the 1999 Employee Stock Purchase Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Port Republic, State of Maryland, on the 4th day
of May, 1999.
CALIBER LEARNING NETWORK, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
By: /s/ John P. Hill
----------------------------------
John P. Hill
Member of Compensation Committee
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/ Chris L. Nguyen President and Chief Executive Officer May 4, 1999
- ----------------------
Chris L. Nguyen (Principal Executive Officer)
/s/ Rick P. Frier Vice President and Chief Financial Officer May 4, 1999
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Rick P. Frier (Principal Financial and Accounting Officer)
A majority of the Board of Directors (R. Christopher Hoehn-Saric, Douglas
L. Becker, Ernest Anastasio, Janeen M. Armstrong, John P. Hill, Susan Mayer).
Date: May 5, 1999 By: /s/ Matthew C. Brenneman
----------------------------------
Matthew C. Brenneman
Attorney-In-Fact
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Articles of Amendment and Restatement of the Charter
(incorporated by reference to the Company's Registration
Statement on Form S-1, as amended File No. 333-47565))
4.2 By-Laws (incorporated by reference to the Company's Registration
Statement on Form S-1, as amended (File No. 333-47565))
4.3 1997 Stock Option Plan (incorporated by reference to
the Company's Registration Statement on Form S-1, as amended
File No. 333-47565))
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 Plans (filed herewith)
23.1 Consent of Counsel (contained in Exhibit 5.0)
23.2 Consent of Independent Auditors (filed herewith)
24.0 Power of Attorney (filed herewith)
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<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
May 5, 1999
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 1,227,400 shares of Common Stock, par
value $.01 per share, issuable pursuant to the exercise of stock options granted
under the 1997 Stock Option Plan and 200,000 shares of Common Stock, par value
$.01 per share, issuable pursuant to subscriptions under the 1999 Employee Stock
Purchase Plan (collectively, the "Plan Shares").
We have examined copies of the Company's Amended and Restated Charter,
By-Laws, the Plans, 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 Plans 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.
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. 1997
Stock Option Plan and the 1999 Employee Stock Purchase Plan of our report dated
February 22, 1999, with respect to the financial statements and schedule of
Caliber Learning Network, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Baltimore, Maryland
May 3, 1999
<PAGE>
EXHIBIT 24.0
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Officers and Directors
of Caliber Learning Network, Inc., a Maryland corporation (the "Corporation"),
hereby constitute and appoint Chris L. Nguyen, Rick P. Frier, and Matthew C.
Brenneman of Baltimore, Maryland, and each of them, the true and lawful agents
and attorneys-in-fact of the undersigned with full power and authority in said
agents and attorneys-in-fact, and in any one or more of them, to sign for the
undersigned and in their respective names as Officers and as Directors of the
Corporation, a Registration Statement on Form S-8 relating to the proposed
issuance of Common Stock and other securities pursuant to the exercise of stock
options granted under the 1997 Stock Option Plan and the fulfillment of
subscriptions under the 1999 Employee Stock Purchase Plan (or any and all
amendments, including post-effective amendments, to such Registration Statement)
and file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, and with full power of
substitution; hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may 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 date indicated.
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<S> <C> <C>
Signature Title Date
/s/ R. Christopher Hoehn-Saric Chairman of the Board of Directors May 4, 1999
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R. Christopher Hoehn-Saric
- ------------------------------
Douglas L. Becker Vice Chairman of the Board of Directors
/s/ Chris L. Nguyen President and Chief Executive Officer May 4, 1999
- ------------------------------
Chris L. Nguyen (Principal Executive Officer)
/s/ Rick P. Frier Vice President and Chief Financial Officer May 4, 1999
- ------------------------------
Rick P. Frier (Principal Financial and Accounting Officer)
/s/ Ernest Anastasio Director May 4, 1999
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Ernest Anastasio
/s/ Susan Mayer Director May 4, 1999
- ------------------------------
Susan Mayer
/s/ John P. Hill Director May 4, 1999
- ------------------------------
John P. Hill
- ------------------------------ Director
Janeen M. Armstrong
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