S-8 1 form_s-8.htm SCIENTIFIC LEARNING CORPORATION FORM S-8 08-11-2009 form_s-8.htm
 As filed with the Securities and Exchange Commission on August  ___, 2009        Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
                            
 
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
                            
 
SCIENTIFIC LEARNING CORPORATION
(Exact name of registrant as specified in its charter)
 
Delaware
  
94-3234458
(State of Incorporation)
  
(I.R.S. Employer Identification No.)

                            
 
300 Frank H. Ogawa Plaza, Suite 600
Oakland, CA 94612
(Address of principal executive offices)
 
                            
 
1999 Equity Incentive Plan
 (Full title of the plans)
 
D. Andrew Myers
Scientific Learning Corporation
300 Frank H. Ogawa Plaza, Suite 600
Oakland, CA 94612
(510) 444-3500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
 
                            
 
Copies to:
Linda L. Carloni
General Counsel
Scientific Learning Corporation
300 Frank H. Ogawa Plaza, Suite 600
Oakland, CA 94612
(510) 444-3500
                            

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer
¨
  
Accelerated filer
¨
           
 
Non-accelerated filer
¨
  
Smaller reporting company
x
 
 
 
 
 
CALCULATION OF REGISTRATION FEE
 
Title of Securities
to be Registered
Amount to be
Registered(1)
Proposed Maximum
Offering
Price per Share
Proposed Maximum
Aggregate
Offering Price
Amount of
Registration Fee
Scientific Learning Corporation Common Stock, par value $0.001 per share, reserved under the 1999 Equity Incentive Plan
1,250,000 shares
$2.185 (2)
$2,731,250
$152.41
TOTAL
1,250,000 shares
$2.185
$2,731,250
$152.41

(1)
Pursuant to Rule 416, this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend, recapitalization or any other similar transaction effected without the receipt of consideration, which results in an increase in the number of the Registrant's outstanding shares of Common Stock.

(2)
Estimated solely for the purpose of calculating the amount of the registration fee.  The offering price per share and aggregate offering price are based upon the average of the high and low price of the Registrant’s common stock as reported on the The Nasdaq Capital Market on August 10, 2009 for shares reserved for future issuance under the Plan (pursuant to Rule 457(h) and Rule 457(c)).
 
 
 
 

EXHIBIT INDEX
EXHIBIT 4.1
EXHIBIT 4.2
EXHIBIT 5.1
EXHIBIT 23.1
EXHIBIT 23.2
EXHIBIT 24.1
 
 
 
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
 
 
The documents containing the information specified in Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1). In accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”) and the instructions to Form S-8, such documents are not being filed with the SEC either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
 
 
The documents containing the information specified in Item 2 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1). In accordance with the rules and regulations of the SEC and the instructions to Form S-8, such documents are not being filed with the SEC either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.  Such documents, together with the documents incorporated by reference herein pursuant to Item 3 of Part II of this Registration Statement on Form S-8, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933, as amended (the “Securities Act”), and are available upon written or oral request:
 
General Counsel
Scientific Learning Corporation
300 Frank H. Ogawa Plaza, Suite 600
Oakland, CA 94612
(510) 444-3500

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT


The following documents filed by Scientific Learning Corporation (the “Company”) with the Securities and Exchange Commission (“SEC”) are incorporated by reference into this Registration Statement (other than information in a report on Form 8-K that is “furnished” and not “filed” pursuant to Form 8-K, and, except as may be noted in any such Form 8-K, exhibits filed on such form that are related to such information):
 
(a)   The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008, as filed with the SEC on March 5, 2009;
 
(b)             The Company’s Current Reports on Form 8-K filed April 30, 2009 (two reports), February 24, 2009, February 23, 2009, January 9, 2009, and January 2, 2009;
 
(c)             The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30, 2009, as filed with the SEC on May 8, 2009 and August 11, 2009; and
 
(d)             The description of the Company’s Common Stock set forth in its Registration Statement on Form S-1 filed with the SEC on July 27, 2007.
 
All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (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 shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of the filing of such reports and documents.  Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as modified or superseded, to constitute a part of this Registration Statement.
 
 
 
 
   Not applicable.
 
 
   Not applicable.
 
 
  Section 145 of the Delaware General Corporation Law authorizes a corporation's board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents.
 
    As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Company’s certificate of incorporation includes provisions that eliminate the personal liability of its directors and officers for monetary damages for breach of their fiduciary duty as directors and officers.
 
   In addition, as permitted by Section 145 of the Delaware General Corporation Law, the bylaws of the Company provide that:
 
●  
The Company shall indemnify its directors and officers for serving the Company in those capacities or for serving other business enterprises at the registrant's request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe such person's conduct was unlawful.
 
●  
The Company may, in its discretion, indemnify employees and agents in those circumstances where indemnification is not required by law.

 
●  
The Company is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
 
●  
The Company will not be obligated pursuant to the bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings (1) authorized by the Company’s board of directors, (2) brought to enforce a right to indemnification or (3) where indemnification is required by law.

●  
The rights conferred in the bylaws are not exclusive, and the Company is authorized to enter into indemnification agreements with its directors, officers, employees and agents and to obtain insurance to indemnify such persons.

●  
The Company may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees and agents.
 
   The Company’s policy is to enter into separate indemnification agreements with each of its directors and officers that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the Delaware General Corporation Law and also provides for certain additional procedural protections. The Company also maintains directors and officers insurance to insure such persons against certain liabilities.
 
 
 
 These indemnification provisions and the indemnification agreements entered into between the Company and its officers and directors may be sufficiently broad to permit indemnification of the Company’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
 
 
 
  Not applicable.
 
 
 
 
Exhibit
Number
  
   
4.1
1999 Equity Incentive Plan, as amended (1)
   
   
   
23.2
Consent of Wilson Sonsini Goodrich & Rosati is contained in Exhibit 5.1 to this Registration Statement
   
24.1
Power of Attorney is contained on the signature pages to this Registration Statement.
   
(1) Filed as Appendix 1 to the Company’s definitive proxy statement filed with the SEC on April 14, 2009 (SEC File No. 000-24547), and incorporated herein by reference.

 
 
 
1.    The undersigned registrant hereby undertakes:
 
            (a)  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;
 
(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.  Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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;
 
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference herein.
 
 
 
  (b)  That, for the 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
  (c)  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.
 
2.   The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
3.   Insofar as indemnification for liabilities arising under the Securities Act 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
 


 
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oakland, State of California, on August 11, 2009.
 

 
SCIENTIFIC LEARNING CORPORATION
   
   
   
   
   By: 
 /s/ D. Andrew Myers
  
 
    D. Andrew Myers
 
    Chief Executive Officer
   


POWER OF ATTORNEY


KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints D. Andrew Myers and Robert E. Feller, and each or any one of them, as his true and lawful attorney-in-fact and agent with full power 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 attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
 
 
 
 
 
 

Signature
Title
Date
     
     
     
/s/ D. Andrew Myers                                        
(D. Andrew Myers)
 
President and Chief Executive
Officer (Principal Executive
Officer) and Director
August 11, 2009
     
     
     
/s/ Robert E. Feller                                           
(Robert E. Feller)
Senior Vice President, Chief
Financial Officer (Principal
Financial and Accounting Officer)
August 11, 2009
     
     
     
/s/ Edward V. Blanchard, Jr.                          
(Edward V. Blanchard, Jr.)
Director
August 11, 2009
 
 
     
/s/ Robert C. Bowen                                       
(Robert C. Bowen)
Director
August 11, 2009
     
     
     
/s/ Rodman W. Moorhead III                       
(Rodman W. Moorhead III)
Director
August 11, 2009
     
     
     
/s/ Michael A. Moses                                   
(Michael A. Moses)
Director
August 11, 2009
     
     
     
/s/ Lance R. Odden                                       
(Lance R. Odden)
Director
August 11, 2009
     
     
     
/s/ David W. Smith                                     
(David W. Smith)
Director
August 11, 2009
     
     
     
/s/ Dr. Paula A. Tallal                                
(Dr. Paula A. Tallal)
Director
August 11, 2009
     
     
     
/s/ Jeffrey D. Thomas                                
(Jeffrey D. Thomas)
Director
August 11, 2009
     
 
6.