As filed with the Securities and Exchange Commission on November 30, 2000
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)
509 South Exeter Street
Suite 400
Baltimore, Maryland 21202
(Address of principal executive offices) (Zip Code)
CALIBER LEARNING NETWORK, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN,
AS AMENDED MAY 23, 2000
(Full title of plans)
(Name, address and telephone
number of agent for service) (Copy to:)
Chris L. Nguyen Richard C. Tilghman, Jr., Esquire
509 South Exeter Street Piper Marbury Rudnick & Wolfe LLP
Suite 400 6225 Smith Avenue
Baltimore, Maryland Baltimore, Maryland 21209-3600
(410) 843-1000 (410) 580-3000
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 200,000 (1)(2) $1.52 $304,000 $80.26
====================================================================================================================
</TABLE>
(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) The shares registered on this Registration Statement are in addition to the
200,000 shares previously registered on Form S-8 filed May 6, 1999 (file no.
333-77919).
(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 November
28, 2000 (i.e., $1.52). 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, 1999;
(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)
<PAGE>
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 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.
<PAGE>
Item 8. Exhibits.
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 1999 Employee Stock Purchase Plan, as amended May 23, 2000
(incorporated by reference to the Company's Definitive Proxy
Statement filed May 30, 2000 (File No. 000-23945))
5.0 Opinion of Piper Marbury Rudnick & Wolfe LLP, counsel for
the Registrant, regarding the legal validity of the shares
of Common Stock being registered under this Registration
Statement
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.
<PAGE>
(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 29th day of
November, 2000.
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 Baltimore, State of Maryland, on the 29th day of
November, 2000.
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.
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<S> <C> <C>
Signature Title Date
/s/ Chris L. Nguyen President and Chief Executive Officer November 29, 2000
--------------------------------- (Principal Executive Officer)
Chris L. Nguyen
/s/ Mark F. Yanson Chief Financial Officer November 29, 2000
--------------------------------- (Principal Financial and Accounting Officer)
Mark F. Yanson
</TABLE>
A majority of the Board of Directors (Chris L. Nguyen, R. Christopher
Hoehn-Saric, Douglas L. Becker, Ernest Anastasio, Janeen M. Armstrong, John P.
Hill, Susan Mayer, Robert L. Burr, Edward E. Mullen).
Date: November 29, 2000 By: /s/ William Senft
---------------------
William Senft Attorney-In-Fact
<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 1999 Employee Stock Purchase Plan, as amended May 23, 2000
(incorporated by reference to the Company's Definitive Proxy
Statement filed May 30, 2000 (File No. 000-23945)
5.0 Opinion of Piper Marbury Rudnick & Wolfe LLP, counsel for
the Registrant, regarding the legal validity of the shares
of Common Stock being registered under this Registration
Statement (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)
<PAGE>
