-----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, M7o5dOBAkLM80t8rrJzotM1QCAmm7Nr0In79eC9X03nlsIb/AxRyDUyywF5zxL4l JiPOp1KHlIo7oeVasnmjHQ== 0000912057-97-023750.txt : 19970710 0000912057-97-023750.hdr.sgml : 19970710 ACCESSION NUMBER: 0000912057-97-023750 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970709 EFFECTIVENESS DATE: 19970709 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRO LEARNING INC CENTRAL INDEX KEY: 0000893965 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS PUBLISHING [2741] IRS NUMBER: 363660532 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-30963 FILM NUMBER: 97638149 BUSINESS ADDRESS: STREET 1: POPLAR CREEK OFFICE PLAZA STREET 2: 1721 MOON LAKE BOULEVARD CITY: HOFFMAN ESTATES STATE: IL ZIP: 60194 BUSINESS PHONE: 7085175100 MAIL ADDRESS: STREET 1: 1721 MOON LAKE BLVD SUITE 555 CITY: HOOFMAN ESGTATES STATE: IL ZIP: 60194 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on July 9, 1997 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ______________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ______________________ TRO 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) 1721 Moon Lake Blvd. Suite 555 Hoffman Estates, Illinois 60194 (847) 781-7800 (Address, including ZIP code, and telephone number, including area code, of registrant's principal executive offices) TRO LEARNING, INC. 1997 STOCK INCENTIVE PLAN (Full title of plan) Andrew N. Peterson Copy to: Senior Vice President, Leland E. Hutchinson, Esq. Chief Financial Officer, Treasurer Winston & Strawn and Secretary 35 West Wacker Drive 1721 Moon Lake Boulevard Chicago, Illinois 60601 Suite 555 (312) 558-7336 Hoffman Estates, Illinois 60194 (Name, address, including ZIP code, and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------- Proposed maximum Proposed Title of securities Amount to offering price maximum aggregate Amount of to be registered be registered per share (1) offering price (1) registration fee - -------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share 600,000 shrs. $8.875 $5,325,000 $1,613.64 - -------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------
(1) Calculated pursuant to Rule 457(h) of the Securities Act of 1933, as amended, based upon the average of the bid and ask price of the common stock, par value $.01 per share, of TRO Learning, Inc. on the Nasdaq National Market System on July 1, 1997. 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 TRO Learning, Inc. (the "Company") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K as filed with the Commission on January 27, 1997 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), containing audited financial statements for the Company's latest fiscal year. (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 as filed with the Commission on March 12, 1997 and June 13, 1997. (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. 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 II-1 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 Exhibit Number Description of Exhibit - ------- ---------------------- 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 By-laws of the Company (filed as Exhibit 3.02 to the Annual Report and hereby incorporated by reference) *4.03 Form of TRO Learning, Inc. 1997 Stock Incentive Plan 4.04 Specimen Common Stock Certificate of the Company (filed as Exhibit 4.01 to the Annual Report and hereby incorporated by reference) *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 Coopers & Lybrand L.L.P. II-2 Exhibit Number Description of Exhibit - ------- ---------------------- 24.01 Powers of Attorney (included on signature page) _____________________ * Filed herewith. 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. II-3 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 Hoffman Estates, State of Illinois, on May 19, 1997. TRO LEARNING, INC. By: /s/ William R. Roach --------------------------------------------- William R. Roach Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY The undersigned directors and executive officers of TRO Learning, Inc. do hereby constitute and appoint Andrew N. Peterson 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 TRO 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 May 19, 1997. Signature Title --------- ----- /s/ William R. Roach Chairman of the Board, President, - -------------------------------- Chief Executive Officer and Director William R. Roach (Principal Executive Officer) /s/ Andrew N. Peterson Senior Vice President, - -------------------------------- Chief Financial Officer, Andrew N. Peterson Treasurer and Secretary (Principal Financial Officer and Chief Accounting Officer) /s/ Jack R. Borsting Director - -------------------------------- Jack R. Borsting /s/ Tony J. Christianson Director - -------------------------------- Tony J. Christianson /s/ Vernon B. Lewis Director - -------------------------------- Vernon B. Lewis /s/ John L. Krakauer Director - -------------------------------- John L. Krakauer /s/ John Patience Director - -------------------------------- John Patience INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8 Exhibit Number Description of Exhibit Page - ------- --------------------- ---- 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 By-laws of the Company (filed as Exhibit 3.02 to the Annual Report and hereby incorporated by reference) *4.03 Form of TRO Learning, Inc. 1997 Stock Incentive Plan 4.04 Specimen Common Stock Certificate of the Company (filed as Exhibit 4.01 to the Annual Report and hereby incorporated by reference) *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 Coopers & Lybrand L.L.P. 24.01 Powers of Attorney (included on signature page) ______________________ * Filed herewith. II-6 EX-4.03 2 EXHIBIT 4.03 STOCK INCENTIVE PLAN Exhibit 4.03 FORM OF TRO LEARNING, INC. 1997 STOCK INCENTIVE PLAN TRO LEARNING, INC. 1997 STOCK INCENTIVE PLAN 1. PURPOSE. The TRO Learning, Inc. 1997 Stock Incentive Plan (the "Plan") is intended to promote the long-term success of TRO Learning, Inc. (the "Company") and its stockholders by strengthening the Company's ability to attract and retain highly competent managers and other selected employees and to provide a means to encourage stock ownership and proprietary interest in the Company. The Plan is intended to provide participants with stock-based incentive compensation which is not subject to the deduction limitation rules prescribed under Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), and should be construed to the extent possible as providing for remuneration which is "performance-based compensation" within the meaning of Section 162(m) of the Code and the regulations promulgated thereunder. 2. TERM. The Plan shall become effective upon its ratification and approval by the affirmative vote of the holders of a majority of the securities of the Company present or represented, and entitled to vote at a meeting of stockholders of the Company, and shall terminate at the close of business on the tenth anniversary of such approval date unless terminated earlier under Section 14. After termination of the Plan, no future awards may be granted, but previously granted awards shall remain outstanding in accordance with their applicable terms and conditions and the terms and conditions of the Plan. 3. PLAN ADMINISTRATION. A committee (the "Compensation Committee") appointed by the Board of Directors of the Company (the "Board") shall be responsible for administering the Plan. The Compensation Committee shall be comprised of two or more non-employee members of the Board who shall qualify as outside Directors to administer the Plan as contemplated by (1) Rule 16b-3 under the Securities and Exchange Act of 1934 (the "Exchange Act") or any successor rules; and (2) Section 162(m) of the Code. Except as otherwise provided in the Plan, the Compensation Committee shall have full and exclusive power to interpret the Plan and to adopt such rules, regulations and guidelines for carrying out the Plan as it may deem necessary or proper, and such power shall be executed in the best interests of the Company and in keeping with the objectives of the Plan. The interpretation and construction of any provision of the Plan or any option or right granted hereunder and all determinations by the Compensation Committee in each case shall be final, binding and conclusive with respect to all interested parties. 4. ELIGIBILITY. Any employee of the Company shall be eligible to receive one or more awards under the Plan. "Company" includes any entity that is directly or indirectly controlled by the Company or any entity in which the Company has a significant equity interest, as determined by the Compensation Committee. 5. SHARES OF COMMON STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 6 of the Plan, the aggregate number of shares of Common Stock, $.01 par value, of the Company ("Stock") which may be transferred to participants under the Plan shall be 600,000, and the aggregate number of shares of Stock that may be covered by awards granted to any single individual under the Plan shall not exceed 75,000 shares per fiscal year of the Company. Any or all of such shares may be granted in the form of incentive stock options ("ISOs") intended to comply with Section 422 of the Code. Shares subject to awards under the Plan which expire, terminate, or are canceled prior to exercise or, in the case of awards granted under Section 8.3, do not vest, shall thereafter be available for the granting of other awards. Shares which have been exchanged by a participant as full or partial payment to the Company in connection with any award under the Plan also shall thereafter be available for the granting of other awards. In instances where a stock appreciation right ("SAR") or other award is settled in cash, the shares covered by such award shall remain available for issuance under the Plan. Likewise, the payment of cash dividends and dividend equivalents paid in cash in conjunction with outstanding awards shall not be counted against the shares available for issuance. Any shares that are issued by the Company, and any awards that are granted through the assumption of, or in substitution for, outstanding awards previously granted by an acquired entity shall not be counted against the shares available for issuance under the Plan. Any shares of Stock issued under the Plan may consist in whole or in part of authorized and unissued shares or of treasury shares, and no fractional shares shall be issued under the Plan. Cash may be paid in lieu of any fractional shares in settlements of awards under the Plan. 6. ADJUSTMENTS. In the event of any stock dividend, stock split, combination or exchange of shares, merger, consolidation, spin-off, recapitalization or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other change affecting shares of Stock or share price, such proportionate adjustments, if any, as the Compensation Committee in its discretion may deem appropriate to reflect such change shall be made with respect to (1) the aggregate number of shares of Stock that may be issued under the Plan; (2) each outstanding award made under the Plan; and (3) the exercise price per share for any outstanding stock options, SARs or similar awards under the Plan. 7. FAIR MARKET VALUE. "Fair Market Value," for all purposes of the Plan, shall mean the closing price of a share of Stock on the NASDAQ National Market System for the date in question. If no sales of shares were made on such date, the closing price of a share as reported for the preceding day on which a sale of shares occurred shall be used. 8. AWARDS. Except as otherwise provided in this Section 8, the Compensation Committee shall recommend to the Board the type or types of award(s) to be made to each participant and the number of shares of Stock subject to each such award, and any other terms, conditions and limitations applicable to such award, and the Board shall grant awards under the Plan after considering such recommendations. Awards may be granted singly, in combination or in tandem. Awards also may be made in combination or in tandem with, in replacement of, as alternatives to or as the payment form for grants or rights under any other compensation plan or individual contract or agreement of the Company including those of any acquired entity. The types of awards that may be granted under the Plan are: 8.1 STOCK OPTIONS. A stock option is a right to purchase a specified number of shares of Stock during a specified period. The purchase price per share for each stock option shall be not less than 100% of Fair Market Value on the date of grant, except if a stock option is granted retroactively in tandem with or as a substitution for a SAR, the exercise price may be no lower than the Fair Market Value of a share as set forth in award agreements for such tandem or replaced SAR. A stock option may be in the form of an ISO which complies with Section 422 of the Code. The price at which shares may be purchased under a stock option shall be paid in full by the optionee at the time of the exercise in cash or such other method permitted by the Compensation Committee, including (1) tendering shares; (2) authorizing a third party to sell the shares (or a sufficient portion thereof) acquired upon exercise of a stock option and assigning the delivery to the Company of a sufficient amount of the sale proceeds to pay for all the shares acquired through such exercise; or (3) any combination of the above. 8.2 SARS. A SAR is a right to receive a payment, in cash and/or shares, equal to the excess of the Fair Market Value of a specified number of shares of Stock on the date the SAR is exercised over the Fair Market Value on the date the SAR was granted as set forth in the applicable award agreement; except that if a SAR is granted retroactively in tandem with or in substitution for a stock option, the designated Fair Market Value set forth in the award agreement shall be no lower than the Fair Market Value of a share for such tandem or replaced stock option. 8.3 STOCK AWARDS. A stock award is a grant made or denominated in shares or units equivalent in value to shares. All or part of any stock award may be subject to conditions and restrictions as set forth in the applicable award agreement, which may be based on continuous service with the Company or the achievement of performance goals related to profits, profit growth, profit-related return ratios, cash flow or total stockholder return, where such goals may be stated in absolute terms or relative to comparable companies. Notwithstanding the foregoing, the Compensation Committee shall have full and exclusive authority to determine the type or types of awards to be made to the Chief Executive Officer of the Company, the number of shares subject to each such award and any other terms, conditions and limitations applicable to such awards. 9. DIVIDENDS AND DIVIDEND EQUIVALENTS. Any awards under the Plan may earn dividends or dividend equivalents as set forth in the applicable award agreement. Such dividends or dividend equivalents may be paid currently or may be credited to a participant's account. Any crediting of dividends or dividend equivalents may be subject to such restrictions and conditions may be established in the applicable award agreement, including reinvestment in additional shares or share equivalents. 10. DEFERRALS AND SETTLEMENTS. Payment of awards may be in the form of cash, stock, other awards or combinations thereof as shall be determined at the time of grant, and with such restrictions as may be imposed in the award agreement. The Compensation Committee also may require or permit participants to elect to defer the issuance of shares or the settlement of awards in cash under such rules and procedures as it may establish under the Plan. It also may provide that deferred settlements include the payment or crediting of interest on the deferral amounts, or the payment or crediting of dividend equivalents where the deferral amounts are denominated in shares. 11. TRANSFERABILITY AND EXERCISABILITY. Awards granted under the Plan shall not be transferable or assignable other than (1) by will or the laws of descent and distribution; (2) by gift or other transfer of an award to any trust or estate in which the original award recipient or such recipient's spouse or other immediate relative has a substantial beneficial interest, or to a spouse or other immediate relative, provided that any such transfer is permitted by Rule 16b-3 under the Exchange Act as in effect when such transfer occurs and the Board does not rescind this provision prior to such transfer; or (3) pursuant to a domestic relations order (as defined by the Code). However, any award so transferred shall continue to be subject to all the terms and conditions contained in the instrument evidencing such award. 12. AWARD AGREEMENTS. Awards under the Plan shall be evidenced by agreements as approved by the Compensation Committee that set forth the terms, conditions and limitations for each award, which may include the term of an award (except that in no event shall the term of any ISO exceed a period of ten years from the date of its grant), the provisions applicable in the event the participant's employment terminates, and the Compensation Committee's authority to unilaterally or bilaterally amend, modify, suspend, cancel or rescind any award. The Compensation Committee need not require the execution of any such agreement, in which case acceptance of the award by the participant shall constitute agreement to the terms of the award. 13. ACCELERATION AND SETTLEMENT OF AWARDS. The Compensation Committee shall have the discretion, exercisable at any time before a sale, merger, consolidation, reorganization, liquidation or change of control of the Company, as defined by the Compensation Committee, to provide for the acceleration of vesting and for settlement, including cash payment of an award granted under the Plan, upon or immediately before the effectiveness of such event. However, the granting of awards under the Plan shall in no way affect the right of the Company to adjust, reclassify, reorganize or otherwise change its capital or business structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all or any portion of its businesses or assets. 14. PLAN AMENDMENT. The Plan may be amended by the Compensation Committee as it deems necessary or appropriate to better achieve the purposes of the Plan, except that no such amendment shall be made without the approval of the Company's stockholders which would increase the number of shares available for issuance in accordance with Sections 5 and 6 of the Plan, or cause the Plan not to comply with Section 162(m) of the Code. The Board may suspend the Plan or terminate the Plan at any time; provided, that no such action shall adversely affect any outstanding benefit. Any shares authorized under Section 5 (or any amendment thereof) with respect to which no Award is granted prior to termination of the Plan, or with respect to which an Award is terminated, forfeited or canceled after termination of the Plan, shall automatically be transferred to any subsequent stock incentive plan for employees of the Company. 15. TAX WITHHOLDING. The Company shall have the right to deduct from any settlement of an award made under the Plan, including the delivery or vesting of shares, a sufficient amount to cover withholding of any federal, state or local taxes required by law, or to take such other action as may be necessary to satisfy any such withholding obligations. The Compensation Committee may, in its discretion and subject to such rules as it may adopt, permit participants to use shares to satisfy required tax withholding and such shares shall be valued at the Fair Market Value as of the settlement date of the applicable award. 16. REGISTRATION OF SHARES. Notwithstanding any other provision of the Plan, the Company shall not be obligated to offer or sell any shares unless such shares are at that time effectively registered or exempt from registration under the Securities Act of 1933, as amended (the "Securities Act") and the offer and sale of such shares are otherwise in compliance with all applicable federal and state securities laws and the requirements of any stock exchange or similar agency on which the Company's securities may then be listed or quoted. The Company shall have no obligation to register the shares under the federal securities laws or take any other steps as may be necessary to enable the shares to be offered and sold under federal or other securities laws. Prior to receiving shares a Plan participant may be required to furnish representations or undertakings deemed appropriate by the Company to enable the offer and sale of the shares or subsequent transfers of any interest in such shares to comply with the Securities Act and other applicable securities laws. Certificates evidencing shares shall bear any legend required by, or useful for the purposes of compliance with, applicable securities laws, this Plan or award agreements. 17. OTHER BENEFIT AND COMPENSATION PROGRAMS. Unless otherwise specifically determined by the Compensation Committee, settlements of awards received by participants under the Plan shall not be deemed a part of a participant's regular, recurring compensation for purposes of calculating payments or benefits from any Company benefit plan or severance program. Further, the Company may adopt other compensation programs, plans or arrangements as it deems appropriate or necessary. 18. UNDERFUNDED PLAN. Unless otherwise determined by the Compensation Committee, the Plan shall be unfunded and shall not create (or be construed to create) a trust or a separate fund or funds. The Plan shall not establish any fiduciary relationship between the Company and any participant or other person. To the extent any person holds any rights by virtue of an award granted under the Plan, such rights shall be no greater than the rights of an unsecured general creditor of the Company. 19. USE OF PROCEEDS. The cash proceeds received by the Company from the issuance of shares pursuant to awards under the Plan shall constitute general funds of the Company. 20. REGULATORY APPROVALS. The implementation of the Plan, the granting of any award under the Plan, and the issuance of shares upon the exercise or settlement of any award shall be subject to the Company's procurement of all approvals and permits required by regulatory authorities having jurisdiction over the Plan, the awards granted under it or the shares issued pursuant to it. 21. EMPLOYMENT RIGHTS. The Plan does not constitute a contract of employment and participation in the Plan will not give a participant the right to continue in the employ of the Company on a full-time, part-time or any other basis. Participation in the Plan will not give any participant any right or claim to any benefit under the Plan, unless such right or claim has specifically accrued under the terms of the Plan. 22. GOVERNING LAW. The validity, construction and effect of the Plan and any actions taken or relating to the Plan shall be determined in accordance with the laws of the State of Illinois and applicable federal law. 23. SUCCESSORS AND ASSIGNS. The Plan shall be binding on all successors and assigns of a participant, including, without limitation, the estate of such participant and the executor, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or representative of the participant's creditors. EX-5.01 3 EXHIBIT 5.01 OPINION OF WINSTON & STRAWN Exhibit 5.01 TRO Learning, Inc. 1721 Moon Lake Blvd. Suite 555 Hoffman Estates, IL 60194 Re: 600,000 SHARES OF COMMON STOCK, $0.01 PAR VALUE, OF TRO LEARNING, INC. ---------------------------------------------------------------------- Ladies or Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") filed by TRO Learning, Inc. (the "Company") with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "Securities Act"), relating to the registration of 600,000 shares of Common Stock, $0.01 par value (the "Shares"), of the Company which may be issued from time to time upon exercise of stock options granted to employees of the Company pursuant to the TRO Learning, Inc. 1997 Stock Incentive Plan (the "Plan"). We are familiar with the proceedings to date with respect to the Plan and the proposed issuance and sale of the Shares and have examined such records, documents and questions of law, and satisfied ourselves as to such matters of fact, as we have considered relevant and necessary as a basis for this opinion. Based on the foregoing, we are of the opinion that: 1. The Company is duly incorporated and validly existing under the laws of the State of Delaware. 2. The Shares will be, as and when acquired in accordance with the terms and conditions of the Plan, legally issued, fully paid and non-assessable under the Delaware General Corporation Law. We do not find it necessary for the purposes of this opinion to cover, and accordingly we express no opinion as to, the application of the securities or blue sky laws of the various states to the sale of the Shares. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to all references to our firm included in or made a part of the Registration Statement. Very truly yours, Winston & Strawn EX-23.02 4 EXHIBIT 23.02 CONSENT OF COOPERS & LYBRAND Exhibit 23.02 CONSENT OF COOPERS & LYBRAND, L.L.P. We consent to the incorporation by reference in this registration statement on Form S-8, "TRO Learning, Inc. 1997 Stock Incentive Plan" to our report dated January 27, 1997 on our audit of the consolidated financial statements and financial statement schedules included in the Company's Annual Report on Form 10-K, as of October 31, 1996 and 1995, and for the three years in the period ended October 31, 1996 of TRO Learning, Inc. and Subsidiaries. Coopers & Lybrand, L.L.P. Chicago, Illinois July 9, 1997 -----END PRIVACY-ENHANCED MESSAGE-----