-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TsoQxUFrxeJ59u4Nsj/SCJIbhS4fJvyfHYk1+xiirjFp80U6xuNZZ4l68thewztG 64Rjvy1PQV1uIx3e1M74AQ== 0000950172-96-000168.txt : 19960410 0000950172-96-000168.hdr.sgml : 19960410 ACCESSION NUMBER: 0000950172-96-000168 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19960409 EFFECTIVENESS DATE: 19960428 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOFTKEY INTERNATIONAL INC CENTRAL INDEX KEY: 0000719612 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 942562108 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-02337 FILM NUMBER: 96545192 BUSINESS ADDRESS: STREET 1: ONE ATHENAEUM ST CITY: CAMBRIDGE STATE: MA ZIP: 02142 BUSINESS PHONE: 6174941200 MAIL ADDRESS: STREET 1: ONE ATHENAEUM ST CITY: CAMBRIDGE STATE: MA ZIP: 02142 FORMER COMPANY: FORMER CONFORMED NAME: WORDSTAR INTERNATIONAL INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: MICROPRO INTERNATIONAL CORP DATE OF NAME CHANGE: 19890618 S-8 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 _______________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SOFTKEY INTERNATIONAL INC. ___________________________________________________________________________ (Exact Name of Registrant as Specified in Its Charter) Delaware ___________________________________________________________________________ (State or Other Jurisdiction of Incorporation or Organization) 94-2562108 ___________________________________________________________________________ (I.R.S. Employer Identification No.) One Athenaeum Street, Cambridge, Massachusetts 02142 ___________________________________________________________________________ (Address of Principal Executive Offices) (Zip Code) SOFTKEY INTERNATIONAL INC. 1996 STOCK OPTION PLAN ___________________________________________________________________________ (Full Title of the Plan) Michael J. Perik Chairman of the Board and Chief Executive Officer SoftKey International Inc. One Athenaeum Street, Cambridge, Massachusetts 02142 ___________________________________________________________________________ (Name and Address of Agent for Service) (617) 494-1200 ___________________________________________________________________________ Telephone Number, Including Area Code, of Agent for Service. CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Securities Amount Maximum Maximum Amount of to be to be Offering Aggregate Registration Registered Registered Price Per Offering Price Fee Share(1) (1) Common Stock, par 5,000,000 $19.81 $99,050,000 $34,156.00 value $0.01 per share shares (1) Estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act of 1933, as amended, based on the average of the high and low prices per share of the Registrant's Common Stock reported on the Nasdaq National Market on April 1, 1996. PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. There is incorporated herein by reference (i) the Annual Report on Form 10-K of SoftKey International Inc. (the "Registrant") (File No. 0-13069) for the fiscal year ended January 6, 1996, (ii) all other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since January 6, 1996, (iii) the description of the Registrant's common stock, par value $0.01 per share (the "Common Stock"), contained in the Registrant's registration statement filed pursuant to Section 12(g) of the Exchange Act and (iv) any amendment or report filed with the Securities and Exchange Commission (the "Commission") for the purpose of updating such description. All documents subsequently filed with the Commission by the Registrant 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 then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the Common Stock offered hereby will be passed upon for the Registrant by Neal S. Winneg, Vice President and General Counsel of the Registrant. Mr. Winneg owns options to purchase an aggregate of 114,375 shares of Common Stock, which are or become exercisable in periodic installments through February 1999. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 102 of the Delaware General Corporation Law, as amended, allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or to any of its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Section 145 of the Delaware General Corporation Law, as amended, provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at its request in such capacity in another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 8 of the Registrant's Restated Certificate of Incorporation, as amended, provides for the limitation of directors' personal liability and indemnification as follows: "8. LIMITATION OF LIABILITY AND INDEMNIFICATION OF DIRECTORS. 8.1 ELIMINATION OF CERTAIN LIABILITIES OF DIRECTORS. 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. If the Delaware General Corporation Law is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of this Section by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. 8.2 INDEMNIFICATION AND INSURANCE 8.2.1 RIGHT TO INDEMNIFICATION. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer, of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to its fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability, and loss (including attorneys' fees, judgments, fines, Employee Retirement Income Security Act of 1974 excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith, and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this Section shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. 8.2.2 NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of this Restated Certificate, Bylaw, agreement, vote of stockholders, or disinterested directors or otherwise. 8.2.3. INSURANCE. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the Delaware General Corporation Law." SoftKey has purchased directors' and officers' liability insurance which would indemnify the directors and officers of SoftKey against damages arising out of certain kinds of claims which might be made against them based on their negligent acts or omissions while acting in their capacity as such. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. EXHIBIT NUMBER DESCRIPTION 4.1 Restated Certificate of Incorporation of the Registrant, as amended1 4.2 Bylaws of the Registrant, as amended2 5 Opinion of Neal S. Winneg, Esq. 23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants 23.2 Consent of Arthur Andersen LLP, Independent Accountants 23.3 Consent of KPMG Peat Marwick LLP, Independent Accountants 23.4 Consent of Price Waterhouse LLP, Independent Accountants 23.5 Consent of Price Waterhouse LLP, Independent Accountants 23.6 Consent of Neal S. Winneg, Esq. (contained in the opinion filed as Exhibit 5 to this Registration Statement) 24 Power of Attorney (included on the signature page of the Registration Statement) 1 Incorporated herein by reference to exhibits filed with the Registrant's Annual Report on Form 10-K for the year ended January 6, 1996. 2 Incorporated herein by reference to exhibits filed with the Registrant's Registration Statement on Form S-3 dated January 23, 1995 (File No. 33-88728). 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 the 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; 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. 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 Section 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 Cambridge, Commonwealth of Massachusetts, on April 8, 1996. SOFTKEY INTERNATIONAL INC. Registrant By: /s/ Michael Perik Michael Perik Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby authorizes Neal S. Winneg and R. Scott Murray and each of them, with full power of substitution, to execute in the name and on behalf of such person any amendment (including any post-effective amendment) to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith, making such changes in this Registration Statement as the person(s) so acting deems appropriate, and appoints each of such persons, each with full power of substitution, attorney-in-fact to sign any amendment (including any post-effective amendment) to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith. Name Date Title /s/ Michael Perik 04/08/96 Chairman of the Board and Michael J. Perik Chief Executive Officer (principal executive officer) /s/ R. Scott Murray 04/08/96 Chief Financial Officer R. Scott Murray (principal financial and accounting officer) /s/ Kevin O'Leary 04/08/96 President and Director Kevin O'Leary /s/ Michael Bell 04/08/96 Director Michael Bell /s/ James C. Dowdle 04/08/96 Director James C. Dowdle /s/ Robert Gagnon 04/08/96 Director Robert Gagnon /s/ Robert Rubinoff 04/08/96 Director Robert Rubinoff /s/ Scott M. Sperling 04/08/96 Director Scott M. Sperling EXHIBIT INDEX Exhibit Number Page No. 4.1 Restated Certificate of -- Incorporation of the Registrant, as amended1 4.2 Bylaws of the Registrant, as -- amended2 5 Opinion of Neal S. Winneg, Esq. 14 23.1 Consent of Coopers & Lybrand 16 L.L.P., Independent Accountants 23.2 Consent of Arthur Andersen LLP, 17 Independent Accountants 23.3 Consent of KPMG Peat Marwick LLP, 18 Independent Accountants 23.4 Consent of Price Waterhouse LLP, 19 Independent Accountants 23.5 Consent of Price Waterhouse LLP, 20 Independent Accountants 23.6 Consent of Neal S. Winneg, Esq. -- (contained in the opinion filed as Exhibit 5 to this Registration Statement) 24 Power of Attorney (included on -- the signature page of the Registration Statement) 1 Incorporated herein by reference to exhibits filed with the Registrant's Annual Report on Form 10-K for the year ended January 6, 1996. 2 Incorporated herein by reference to exhibits filed with the Registrant's Registration Statement on Form S-3 dated January 23, 1995 (File No. 33-88728). Exhibit 5 April 8, 1996 SoftKey International Inc. One Athenaeum Street Cambridge, Massachusetts 02142 Re: Registration Statement on Form S-8 Ladies and Gentlemen: I am Vice President and General Counsel of SoftKey International Inc., a Delaware corporation (the "Company"), and am issuing this opinion in connection with the Registration Statement on Form S-8 being filed by the Company with the Securities and Exchange Commission (the "Commission") on the date hereof (the "Registration Statement") for the purpose of registering with the Commission under the Securities Act of 1933, as amended (the "1933 Act"), 5,000,000 shares (the "Shares") of common stock of the Company, par value $0.01 per share, issuable upon the exercise of options granted under the SoftKey International Inc. 1996 Stock Option Plan (the "Plan") and pursuant to other Awards (as defined in the Plan) which may be granted under the Plan. In this connection, I have examined and am familiar with originals or copies, certified or otherwise identified to my satisfaction, of (i) the Registration Statement, (ii) the Plan, (iii) forms of Award Agreements (as defined in the Plan), (iv) the Restated Certificate of Incorporation and Bylaws of the Company, as amended and as currently in effect, (v) certain resolutions adopted by the Board of Directors of the Company relating to the issuance of the Shares and certain related matters and (vi) such other documents, certificates and records as I have deemed necessary or appropriate as a basis for the opinions set forth herein. In such examination, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such copies. As to any facts material to the opinions expressed herein which I have not independently established or verified, I have relied upon statements and representations of other officers and representatives of the Company and others. I am admitted to the Bar of the Commonwealth of Massachusetts and do not purport to be an expert on, or express any opinion concerning, any law other than the substantive law of the Commonwealth of Massachusetts. Based upon and subject the foregoing, I am of the opinion that the Shares have been duly authorized for issuance and, when the Shares have been paid for and certificates therefor have been issued and delivered upon exercise of options or pursuant to other Awards in accordance with the terms of the Plan and the corresponding Award Agreement as contemplated by the Registration Statement, the Shares will be validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations of the Commission promulgated thereunder. This opinion is furnished by me, as Vice President and General Counsel of the Company, in connection with the filing of the Registration Statement and, except as provided in the immediately preceding paragraph, is not to be used, circulated, quoted for any other purpose or otherwise referred to or relied upon by any other person without the express written permission of the Company. Very truly yours, /s/ Neal S. Winneg Neal S. Winneg Vice President and General Counsel Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statement of SoftKey International Inc. on Form S-8 to register shares of Common Stock related to Softkey International Inc.'s 1996 Stock Option Plan of our report dated February 20, 1996, on our audits of the consolidated balance sheets of SoftKey International Inc. as of December 31, 1995 and 1994, and the related consolidated statements of operations, stockholders' equity, and cash flows for the years ended December 31, 1995 and 1994, and the related financial statement schedule. /s/ Coopers & Lybrand L.L.P. COOPERS & LYBRAND L.L.P. Boston, Massachusetts April 4, 1996 Exhibit 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-8 of our report dated January 16, 1995 included in SoftKey International Inc.'s Form 10-K for the year ended January 6, 1996 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Boston, Massachusetts April 4, 1996 Exhibit 23.3 CONSENT OF INDEPENDENT AUDITORS The Board of Directors and Stockholders SoftKey International Inc. (formerly WordStar International Incorporated): We consent to incorporation by reference in the registration statement on Form S-8 of SoftKey International Inc. for The SoftKey International Inc. 1996 Stock Option Plan, of our report dated September 13, 1993, relating to the consolidated statements of operations, stockholders' equity, and cash flows for the year ended June 30, 1993, and the related schedule, of WordStar International Incorporated and subsidiaries, which report appears in the December 31, 1995 annual report on Form 10-K of SoftKey International Inc. /s/ KPMG Peat Marwick LLP KPMG Peat Marwick LLP San Francisco, California April 4, 1996 Exhibit 23.4 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of SoftKey International Inc. of our report dated September 28, 1993, except as to Note 12 which is as of Decmber 3, 1993, relating to the consolidated financial statements of Spinnaker Software Corporation, appearing on page 32 of the Annual Report on Form 10-K for the fiscal year ended January 6, 1996. PRICE WATERHOUSE LLP Boston, Massachusetts April 4, 1996 Exhibit 23.5 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of SoftKey International Inc. ("SoftKey") of our report dated January 5, 1996, relating to the combined financial statements of Compton's New Media Group as of December 25, 1994 and for the fiscal year then ended, which appears in the Current Report on Form 8-K/A of SoftKey dated January 25, 1996. PRICE WATERHOUSE LLP Chicago, Illinois April 5, 1996 -----END PRIVACY-ENHANCED MESSAGE-----