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As filed with the Securities and Exchange Commission on December 19, 1997
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UOL PUBLISHING, INC.
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(Exact name of issuer as specified in its charter)
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<S> <C>
DELAWARE 54-1290319
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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8251 GREENSBORO DRIVE, SUITE 500, MCLEAN, VIRGINIA 22102
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(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED STOCK OPTION PLAN
1996 STOCK PLAN
(Full title of the plans)
NARASIMHAN P. KANNAN, CHIEF EXECUTIVE OFFICER
UOL PUBLISHING, INC.
8251 GREENSBORO DRIVE, SUITE 500
MCLEAN, VIRGINIA 22102
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(Name and address of agent for service)
(703) 893-7800
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(Telephone number, including area code, of agent for service)
Copies to:
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Donald R. Reynolds, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO AMOUNTS TO OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED BE REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
COMMON STOCK,
PAR VALUE
$0.01 PER SHARE 1,774,876 SHARES(1) $12.25(2) $21,742,231(2) $6,588.55(2)
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(1) INCLUDES 249,983 SHARES RESERVED FOR ISSUANCE UNDER THE
AMENDED AND RESTATED STOCK OPTION PLAN AND 1,524,893 SHARES
RESERVED FOR ISSUANCE UNDER THE 1996 STOCK PLAN.
(1) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE
REGISTRATION FEE PURSUANT TO RULE 457(c), BASED ON THE AVERAGE
OF THE HIGH AND LOW PRICES FOR THE COMMON STOCK ON THE NASDAQ
NATIONAL MARKET SYSTEM ON DECEMBER 18, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by UOL Publishing, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed pursuant to Section 13 of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Proxy Statement dated April 30, 1997, filed
pursuant to Section 14 of the Exchange Act, in connection with the Annual
Meeting of Stockholders of the Company held on May 28, 1997;
(c) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30, and September 30, 1997, filed pursuant to
Section 13 of the Exchange Act;
(d) The Company's Current Report on Form 8-K filed April 30,
1997, as amended, pursuant to Section 13 of the Exchange Act;
(e) The Company's Current Report on Form 8-K filed November 17,
1997, as amended, pursuant to Section 13 of the Exchange Act; and
(f) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A (File No. 0-21421) filed
pursuant to Section 12 of the Exchange Act, including any amendment or 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 hereof and prior to the
filing of a post-effective amendment that indicates that all securities offered
under this registration statement have been sold or that deregisters all
securities then remaining unsold shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed to constitute a part hereof except as so modified or
superseded.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 ("Section 145") of the Delaware General Corporation
Law, as amended, generally provides that a director or officer of a corporation
(i) shall be indemnified by the corporation for all expense of such legal
proceedings when he or she is successful on the merits, (ii) may be indemnified
by the corporation for the expenses, judgments, fines and amounts paid in
settlement of such proceedings (other than a derivative suit), even if he or
she is not successful on the merits, if he or she acts in good faith and in a
manner he or she reasonably believes to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe his or her conduct was
unlawful, and (iii) may be indemnified by the corporation for the expenses of a
derivative suit (a suit by a stockholder alleging a breach by a director or
officer of a duty owed to the corporation), even if he or she is not successful
on the merits, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interest of the
corporation. No indemnification may be made under clause (iii) above, however,
if the director or officer is adjudged liable for negligence or misconduct in
the performance of his or her duties to the corporation, unless a corporation
determines that, despite such adjudication, but in view of all the
circumstances, he or she is entitled to indemnification. The indemnification
described in clauses (ii) and (iii) above may be made by upon a determination
that indemnification is proper because the applicable standard of conduct has
been met. Such a determination may be made by a majority of a quorum of
disinterested directors, independent legal counsel, the stockholders or a court
of competent jurisdiction.
Article VI of the Company's Bylaws provides in substance that, to
the fullest extent permitted by Delaware law as it now exists or as amended,
each director and officer shall be indemnified against reasonable costs and
expenses, including attorneys' fees and any liabilities which he or she may
incur in connection with any action to which he or she may be made a party by
reason or his or her being or having been a director or officer of the
Registrant. The indemnification provided by the Company's Bylaws is not deemed
exclusive of or intended in any way to limit any other rights to which any
person seeking indemnification may be entitled.
Section 102(b)(7) of the Delaware General Corporation Law, as
amended, permits a corporation to provide in its Certificate of Incorporation
that a director of the corporation shall not be personally liable to the
corporation or its stockholders 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 corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. Article VII of the Company's Certificate of
Incorporation provides for the elimination of personal liability of a director
for breach of fiduciary duty, as permitted by Section 102(b)(7) of the Delaware
General Corporation Law.
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The Registrant maintains liability insurance insuring the
Registrant's officers and directors against liabilities than they may incur in
such capacities.
Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the Registrant has been informed 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
With respect to restricted securities to be reoffered or resold
pursuant to this registration statement, the sales of such securities were
deemed to be exempt from registration under the Act in reliance upon Section
4(2) of the Act or Regulation D or Rule 701 promulgated thereunder as
transactions by an issuer not involving a public offering. Recipients of the
securities in each such transaction represented their intentions to acquire
such securities for investment only and not with a view to or for sale in
connection with any distribution thereof and appropriate legends were affixed
to the instruments issued in such transactions. All recipients had adequate
access to information about the Company.
Item 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
Exhibit
Number Description
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5.1 Opinion of Wyrick Robbins Yates & Ponton LLP
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Wyrick Robbins Yates & Ponton LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (see page S-1).
Item 9. UNDERTAKINGS.
(a) 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 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;
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(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; and
(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 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.
(h) 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 McLean, State of Virginia, on the 17th day of
December 1997.
UOL PUBLISHING, INC.
By: /s/Narasimhan P. Kannan
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Narasimhan P. Kannan,
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Narasimhan P. Kannan and Carl N. Tyson, and each of them, his true and lawful
attorney-in-fact and agent, with full powers of substitution and
resubstitution, 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, 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 for
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, as
amended, this Form S-8 has been signed below by the following persons in the
capacities and on the date indicated.
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Signature Title Date
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<S> <C> <C>
/s/Narasimhan P. Kannan Chief Executive Officer and December 17, 1997
- ---------------------------------- Director (Principal
Narasimhan P. Kannan Executive Officer
/s/Leonard P. Kurtzman Chief Financial Officer December 17, 1997
- ---------------------------------- (Principal Financial and
Leonard P. Kurtzman Accounting Officer)
/s/Carl N. Tyson Director December 17, 1997
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Carl N. Tyson
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/s/Edson D. deCastro Director December 17, 1997
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Edson D. deCastro
/s/Barry K. Fingerhut Director December 17, 1997
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Barry K. Fingerhut
/s/William E. Kimberly Director December 17, 1997
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William E. Kimberly
Director December 17, 1997
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D. Wayne Silby
/s/Steven M.H. Wallman Director December 17, 1997
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Steven M.H. Wallman
/s/Kamyar Kaviani Director December 17, 1997
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Kamyar Kaviani
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EXHIBIT 5.1
WYRICK ROBBINS YATES & PONTON LLP
Attorneys at Law
The Summit
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607-7506
December 18, 1997
UOL Publishing, Inc.
8251 Greensboro Drive, Suite 500
McLean, Virginia 22102
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
UOL Publishing, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission on or about the date hereof (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 1,774,876 shares of the Company's Common
Stock, $0.01 par value per share (the "Shares"). We understand that the Shares
are to issued pursuant to the Company's Amended and Restated Stock Option Plan,
the Company's 1996 Stock Plan or a warrant to purchase common stock. In our
examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the original of all documents submitted to us as copies thereof.
As your legal counsel, we have examined the proceedings taken, and are
familiar with the proceedings proposed to be taken, by you in connection with
the sale and issuance of the Shares.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us, as your securities counsel, to be taken prior to the
issuance of the Shares, including the proceedings being taken in order to
permit such transactions to be carried out in accordance with applicable state
securities laws, the Shares, when issued in the manner referred to in the
Registration Statement and in accordance with the resolutions adopted by the
Board of Directors of the Company, will be legally and 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 the use of our name wherever
appearing in the Registration Statement, including the Prospectus relating
thereto, and any amendments thereto.
Very truly yours,
WYRICK ROBBINS YATES & PONTON LLP
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Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the in corporation by reference in the Registration Statement
(Form S-8 No. 333-___) pertaining to the Amended and Restated Stock Option Plan
and 1997 Stock Plan of UOL Publishing, Inc. of our report dated February 7,
1996, with respect to the consolidated financial statements of UOL Publishing,
Inc. included in the Annual Report on Form 10-K for the year ended December 31,
1996.
/s/ Ernst & Young LLP
Vienna, Virginia
December 18, 1997
