SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
Commission File No._____________
SONIC FOUNDRY, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 39-1783372
-------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1617 Sherman Avenue, Madison, WI 53704 (608) 256-3133
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(Address of principal executive offices) (Issuer's telephone number)
MediaSite, Inc. Employee Retention Plan
---------------------------------------
(Full title of plan)
Rimas P. Buinevicius Copy to:
Chief Executive Officer James R. Stern, Esq.
1617 Sherman Avenue McBreen & Kopko
Madison, WI 53704 20 North Wacker Drive
(608) 256-3133 Suite 2520
(Name, address, including zip code, and Chicago, IL 60606
telephone number, including area code, (312) 332-6405
of agent for service)
Calculation of Registration Fee
============================================================================================
Title of Proposed Aggregate
Securities to be Amount to be Maximum Offering Offering Amount of
Registered Registered Price per Share Price Registration Fee
============================================================================================
Common Stock, 327,199 Shares (2) $2.69 (3) $880,165 (4) $210.36
$.01 par value per
share(1)
============================================================================================
(1) Consists of Shares which may be acquired by certain former employees
of MediaSite, Inc. who are current employees of Sonic Foundry, Inc.,
and who participated in the MediaSite, Inc. Employee Retention Plan
(the "Plan").
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers additional
shares of Sonic Foundry, Inc. common stock that may be issued or
become issuable under the MediaSite, Inc. Employee Retention Plan in
order to prevent dilution resulting from any stock split, stock
dividend or similar transaction.
(3) Computed pursuant to Rule 457(c) and (h) based on the average of the
high and low prices reported on the Nasdaq Stock Market on December
19, 2001.
(4) Estimated solely for purposes of determining the registration fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
The information required for this item is included in documents distributed
to each participant in the MediaSite, Inc. Employee Retention Plan
("Participant").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The information required for this item is included in documents distributed
to each Participant.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus
information that we file with the SEC in other documents. This means that we can
disclose important information to you by referring to other documents that
contain that information. The information incorporated by reference is
considered to be part of this prospectus, and information that we file with the
SEC in the future and incorporate by reference will automatically update and may
supersede the information contained in this prospectus. We incorporate by
reference the documents listed below and any future filing we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, prior to the sale of all the shares covered by this prospectus.
- Our Annual Report on Form 10K for the fiscal year ended September 30,
2001;
- Our Current Report on Form 8-K filed on October 30, 2001; and
- The description of our common stock contained in our Exchange Act
Registration Statement on Form 8-A, filed April 20, 2000.
You may request free copies of these filings by writing or telephoning us
at the following address: Investor Relations, 1617 Sherman Avenue, Madison,
Wisconsin 53704, telephone (608) 256-3133.
ITEM 4. DESCRIPTION OF SECURITIES
Not required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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The law firm of McBreen & Kopko will be furnishing an opinion as to the
legality of the Common Stock registered under this Registration Statement.
During fiscal 2000, we paid $227,975 to McBreen & Kopko for legal services.
Frederick H. Kopko, Jr. is a partner of McBreen & Kopko. Mr. Kopko is a director
of the Company and is the beneficial owner of 183,192 shares of Common Stock and
holds options to purchase an additional 180,000 Shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Articles of Incorporation limit the liability of our directors in their
capacity as directors but not in their capacity as officers, to the fullest
extent permitted by the Maryland General Corporation Law or MGCL. Accordingly,
pursuant to the terms of the MGCL as presently in effect, we may indemnify any
director unless it is established that: (i) the act or omission of the director
was material to the matter giving rise to the proceeding and was committed in
bad faith or was the result of active and deliberate dishonesty; (ii) the
director actually received an improper personal benefit in money, property or
services; or (iii) in the case of any criminal proceeding, the director had
reasonable cause to believe that the act or omission was unlawful. In addition,
our Bylaws require us to indemnify each person who is or was, a director,
officer, employee or agent of ours to the fullest extent permitted by the laws
of the State of Maryland in the event he is involved in legal proceedings by
reason of the fact that he is or was a director, officer, employee or agent of
ours, or is or was serving at our request as a director, officer, employee or
agent of another corporation, partnership or other enterprise. We may also
advance to such persons expenses incurred in defending a proceeding to which
indemnification might apply, upon terms and conditions, if any, deemed
appropriate by the Board of Directors upon receipt of an undertaking by or on
behalf of such director or officer to repay all such advanced amounts if it is
ultimately determined that he is not entitled to be indemnified as authorized by
the laws of the State of Maryland. In addition, we carry director and officer
liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
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(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) that,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(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)(1(1) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference 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 the 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 that 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 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 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 Securities Act of 1933
and is, therefore, unenforceable. If a claim for indemnification
against such
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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 of whether such indemnification
by it is against public policy as expressed in the Securities Act of
1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe it meets all 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 Madison, State of Wisconsin, on this 21stday of
December, 2001.
Sonic Foundry, Inc.
By: /s/ Rimas Buinevicius
----------------------------
Rimas Buinevicius, Chairman
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Rimas Buinevicius and Kenneth Minor 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 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 to 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 substitutes or substitute may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
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Name Title Date
/s/ Rimas Buinevicius Chairman and Chief December 21, 2001
----------------------------- Executive Officer
Rimas Buinevicius (Principal Executive Officer)
/s/ Kenneth A. Minor Chief Financial Officer and December 21, 2001
----------------------------- Secretary
Kenneth A. Minor (Principal Financial and
Accounting Officer)
/s/ Monty Schmidt President and Director December 21, 2001
-----------------------------
Monty Schmidt
/s/ Curtis Palmer
-----------------------------
Curtis Palmer Executive Vice President, Chief December 21, 2001
Technology Officer and
Director
/s/ Frederick H. Kopko, Jr. Director December 21, 2001
-----------------------------
Frederick H. Kopko, Jr.
/s/ Arnold Pollard Director
-----------------------------
Arnold Pollard December 21, 2001
/s/ David Kleinman Director December 21, 2001
-----------------------------
David Kleinman
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INDEX TO EXHIBITS
Page
Item Number
Sequentially
Numbered Description
-------- -----------------------------------------------------------------
4.1 Amended and Restated Articles of Incorporation of the Registrant,
filed as Exhibit No. 3.1 to the Registration Statement on
Amendment No. 2 to Form SB-2 dated April 3, 1998 (Reg. No.
333-46005) (the "Registration Statement"), and hereby
incorporated by reference. *
4.2 Amended and Restated By-Laws of the Registrant filed as Exhibit
No. 3.2 to the Registration Statement, and hereby incorporated
by reference. *
4.3 Specimen Common Stock Certificate, filed as Exhibit No. 4.1 to
the Registration Statement, and hereby incorporated by reference.
*
4.4 MediaSite, Inc. Employee Retention Plan. (x)
5.1 Opinion of McBreen & Kopko as to the legality of the stock
registered hereby (x)
23.1 Consent of McBreen & Kopko (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP (x)
24.1 Power of Attorney (contained within Signature Page)
* incorporated herein by reference
(x) filed herwith