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As filed with the Securities and Exchange Commission
on September 6, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PLATO LEARNING, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3660532
(State or other jurisdiction of (I.R.S.Employer Identification No.)
incorporation or organization)
10801 Nesbitt Avenue South
Bloomington, Minnesota 55437
(952) 832-1000
(Address, including ZIP code, and telephone number,including area code,
of registrant's principal executive offices)
PLATO LEARNING, INC.
2000 STOCK INCENTIVE PLAN
(Full title of plan)
John Murray Copy to:
President, Chief Operating Officer and Leland E. Hutchinson, Esq.
Acting Chief Financial Officer Winston & Strawn
10801 Nesbitt Avenue South 35 West Wacker Drive
Bloomington, Minnesota 55437 Chicago, Illinois 60601
(952) 832-1000 (312) 558-7336
(Name, address, including ZIP code, and telephone
number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of securities to be Amount to be Proposed Proposed
registered registered maximum maximum aggregate
offering price offering price (1) Amount of registration fee
per share (1)
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<S> <C> <C> <C> <C>
Common Stock, par value 700,000 shrs. $13.4687 $9,428,090 $2,489.02
$.01 per share
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</TABLE>
(1) Calculated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, based upon the average of the high and low prices of the
common stock, par value $.01 per share, of PLATO Learning, Inc. on the
Nasdaq National Market System on August 30, 2000.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
of Form S-8 will be sent or given to participant non-employee directors as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). These documents and the documents incorporated by reference
into this Registration Statement pursuant to Item 3 of Part II of this
Registration Statement taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act. You may request a copy of
these filings at no cost by writing or telephoning us at the following address:
PLATO Learning, Inc., 10801 Nesbitt Avenue South, Bloomington, Minnesota 55437,
Attention: Treasurer, Telephone: (952) 832-1000.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Securities
and Exchange Commission (the "Commission") by PLATO Learning, Inc. (the
"Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended October 31, 1999 (file no. 333-72523);
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act, since the end of the fiscal year covered by the Annual
Report on Form 10-K referenced above including, without limitation, the
Company's Quarterly Reports on Form 10-Q for the quarters ended January 31, 2000
and April 30, 2000 (file no. 333-72523).
(c) The description of the Company's common stock, par value
$.01 per share (the "Common Stock"), which is contained in the registration
statement on Form 8-A filed with the Commission on November 12, 1992 under the
Exchange Act, including any subsequent amendment or any report filed for the
purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold are deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the respective dates of
filing of such documents (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated under the laws of the State of
Delaware. Section 145 of the Delaware Law ("Section 145") provides that a
Delaware corporation may indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer, director, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action or proceeding, if he
acted in good faith and in a manner he reasonably believed to be in or not
appeared to the best interests of the corporation, and, with respect to any
criminal action, had no reasonable cause to believe that this his conduct was
illegal. A Delaware corporation may indemnify any persons who are, or are
threatened to be made, a party to any threatened, pending or completed action or
suit by or in the right of the corporation by reason of the fact that such
person was a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include defense or settlement of such action or
suit, provided such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests except that
no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred.
The Company's Bylaws provide for the indemnification of
directors and officers of the Company to the fullest extent permitted by
Delaware Law. The Company has entered into indemnification agreements with its
directors and executive officers which provide indemnification to the full
extent permitted by the Company's By-Laws. Such agreements also provide for the
advancement to indemnified persons of litigation costs and expenses.
The Company's Certificate of Incorporation provides that to
the fullest extent permitted by the Delaware Law, a director of the Company
shall not be liable to the Company or its stockholders for a breach of fiduciary
duty as a director.
The Company maintains directors' and officers' liability
insurance which insures the directors and officers of the Company and its
subsidiaries against damages, judgments, settlements and costs incurred by
reason of certain acts committed by such persons in their capacities as officers
and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
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<S> <C>
4.01 Certificate of Incorporation of the Company (filed as Exhibit 3.01 to the Company's
Annual Report on Form 10-K filed with the Commission on January 27, 1997, as amended
(the "Annual Report"), and hereby incorporated by reference)
*4.02 Amended and Restated By-laws of the Company
*4.03 Form of PLATO Learning, Inc. 2000 Stock Incentive Plan
*5.01 Opinion of Winston & Strawn as to the legality of the securities being registered
*23.01 Consent of Winston & Strawn (included in its opinion filed as Exhibit 5.01)
*23.02 Consent of PricewaterhouseCoopers LLP
24.01 Powers of Attorney (included on signature page)
</TABLE>
* Filed herewith.
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ITEM 9. UNDERTAKINGS
(a) The undersigned Company 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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in the
Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for 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.
(b) The undersigned Company hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Company'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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company 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 Bloomington, State of Minnesota, on September 6,
2000.
PLATO LEARNING, INC.
By: /s/ William R. Roach
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William R. Roach
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
The undersigned directors and executive officers of PLATO
Learning, Inc. do hereby constitute and appoint John Murray and Mary Jo Murphy,
and each of them, with full power of substitution, our true and lawful
attorneys-in-fact and agents to do any and all acts and things in our name and
behalf in our capacities as directors and officers, and to execute any and all
instruments for us and in our names in the capacities indicated below which such
person may deem necessary or advisable to enable PLATO Learning, Inc. to comply
with the Securities Act of 1933, as amended (the "Securities Act"), and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but not
limited to, power and authority to sign for us, or any of us, in the capacities
indicated below, any and all amendments (including pre-effective and
post-effective amendments) hereto; and we do hereby ratify and confirm all that
such person or persons shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 6, 2000.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ William R. Roach Chairman of the Board, and
-------------------------------------------- Chief Executive Officer
William R. Roach
/s/ John Murray President, Chief Operating Officer, Acting Chief
-------------------------------------------- Financial Officer and Director
John Murray
/s/ Mary Jo Murphy Vice President, Corporate Controller and Chief
-------------------------------------------- Accounting Officer
Mary Jo Murphy
/s/ Jack R. Borsting Director
--------------------------------------------
Jack R. Borsting
/s/ Hurdis M. Griffith Director
--------------------------------------------
Hurdis M. Griffith
</TABLE>
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<TABLE>
<S> <C>
/s/ Vernon B. Lewis Director
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Vernon B. Lewis
/s/ John L. Krakauer Director
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John L. Krakauer
/s/ Arthur W. Stellar Director
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Arthur W. Stellar
/s/ Dennis J. Reimer Director
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Dennis J. Reimer
</TABLE>
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit Page
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<S> <C> <C>
4.01 Certificate of Incorporation of the Company (filed as Exhibit 3.01 to the
Company's Annual Report on Form 10-K filed with the Commission on
January 27, 1997, as amended (the "Annual Report"), and hereby
incorporated by reference)
*4.02 Amended and Restated By-laws of the Company
*4.03 Form of PLATO Learning, Inc. 2000 Stock Incentive Plan
*5.01 Opinion of Winston & Strawn as to the legality of the securities being
registered
*23.01 Consent of Winston & Strawn (included in its opinion filed as Exhibit
5.01)
*23.02 Consent of PricewaterhouseCoopers LLP
24.01 Powers of Attorney (included on signature page)
</TABLE>
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* Filed herewith.
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