ROSETTA STONE INC (Form: S-8, Received: 08/08/2012 14:15:40)

As filed with the Securities and Exchange Commission on August 8, 2012

Registration No. 333-

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

ROSETTA STONE INC.

(Exact name of registrant as specified in its charter)

Delaware		043837082
(State or other jurisdiction of incorporation or organization)		(I.R.S Employer Identification No.)

1919 North Lynn St., 7 th Fl, Arlington, Virginia		22209
(Address of Principal Executive Offices)		(Zip Code)

2009 Omnibus Incentive Plan

(Full title of the plan)

Michael C. Wu

General Counsel

1919 North Lynn Street

7 th Floor

Arlington, Virginia 22209

Telephone: 800-788-0822

Copies to:

Brian P. Fenske

Fulbright & Jaworski L.L.P.

Fulbright Tower

1301 McKinney, Suite 5100

Houston, Texas 77010

Telephone: (713) 651-5557

Facsimile: (713) 651-5246

(Name, address, and telephone number, including area code, of agent for service)

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	o	Accelerated filer	x
Non-accelerated filer	o	Smaller reporting company	o
(Do not check if a smaller reporting company)

CALCULATION OF REGISTRATION FEE

Title of securities to be registered	Amount to be registered (1)	Proposed maximum offering price per share(2)		Proposed maximum aggregate offering price(2)		Amount of registration fee
Common Stock, $0.00005 par value per share
To be issued under the 2009 Omnibus Incentive Plan	1,122,930	$	12.70	$	14,261,211	$	1,635

(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement also covers an additional indeterminable number of shares as may be necessary to adjust the number of shares being offered or issued pursuant to the plans as a result of stock splits, stock dividends or similar transactions.

(2) Estimated in accordance with Rules 457(c) and (h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee, based upon the average high and low prices of the Common Stock on August 2, 2012, as reported on the NYSE.

EXPLANATORY NOTE

Rosetta Stone Inc., a Delaware corporation (the “Company” or the “Registrant”), previously registered 2,437,744 shares of its Common Stock, $0.00005 par value per share (“Common Stock”), available for grant of awards under the Company’s 2009 Omnibus Incentive Plan (the “2009 Plan”). The registration of such shares of Common Stock was filed on a Form S-8 Registration Statement with the Securities and Exchange Commission (“SEC”) on April 28, 2009 (File Number 333-158828), in accordance with the Securities Act (the “First Registration Statement”).

The Company’s Board of Directors adopted, and on May 26, 2011 the stockholders of the Company approved, an amendment to the 2009 Plan to provide that, among other things, an additional 1,000,000 shares of Common Stock be available under the 2009 Plan. The registration of such shares of Common Stock was filed on a Form S-8 Registration Statement with the SEC on March 30, 2012 (File Number 333-180483), in accordance with the Securities Act (the “Second Registration Statement”, together with the First Registration Statement, the “Prior Registration Statements”).

The Company’s Board of Directors adopted, and on May 23, 2012 the stockholders of the Company approved, a second amendment to the 2009 Plan to provide that, among other things, an additional 1,122,930 shares of Common Stock be available under the 2009 Plan.

This Registration Statement relates to securities of the same class as those to which the Prior Registration Statements relate, and is submitted in accordance with General Instruction E to Form S-8 regarding Registration of Additional Securities. Pursuant to Instruction E of Form S-8, the contents of the Prior Registration Statements are incorporated herein by reference and made part of this Registration Statement, except as amended hereby.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. Incorporation of Documents by Reference.

The Registrant hereby incorporates by reference into this Registration Statement the following documents and information previously filed with the Commission:

(i) Registrant’s Annual Report on Form 10-K for its fiscal year ended December 31, 2011, as filed with the Commission on March 14, 2012;

(ii) Registrant’s Quarterly Report on Form 10-Q filed for its fiscal quarter ended March 31, 2012, as filed with the Commission on May 9, 2012;

(iii) Registrant’s Current Reports on Form 8-K filed with the Commission on January 11, 2012, February 23, 2012, May 1, 2012, May 25, 2012, June 19, 2012 and June 29, 2012; provided, however, that information furnished pursuant to Item 2.02 or Item 7.01 of any Form 8-K, including any exhibits included with such information, shall not be deemed incorporated by reference; and

(iv) The description of our Common Stock contained in our Registration Statement on Form 8-A (File No. 001-34283) filed with the Commission on April 13, 2009, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended, including any amendment or report filed for the purpose of updating such description.

All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (other than Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such information, unless otherwise indicated therein), subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.

Any statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated herein by reference 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 subsequently filed document which also is, or 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 so modified or superseded, to constitute a part of this Registration Statement.

ITEM 8. Exhibits.

For a list of exhibits, see the Exhibit Index in this Registration Statement, which information is incorporated herein by reference.

SIGNATURES

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 Arlington, State of Virginia, on August 7, 2012.

	ROSETTA STONE INC.

	By:	/S/STEPHEN M. SWAD
		Stephen M. Swad
		President and Chief Executive Officer

POWER OF ATTORNEY

We, the undersigned officers and directors of Rosetta Stone Inc., hereby severally constitute and appoint Stephen M. Swad and Michael C. Wu, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and 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 or necessary to be done in and about the premises, as full 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 substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Name	Title	Date

/S/STEPHEN M. SWAD	President and Chief Executive Officer, Director	August 7, 2012
Stephen M. Swad	(Principal Executive Officer)

/S/ THOMAS M. PIERNO	Chief Financial Officer	August 7, 2012
Thomas M. Pierno	(Principal Financial and Accounting Officer)

/S/ TOM P.H. ADAMS	Chairman of the Board	August 7, 2012
Tom P.H. Adams

/S/ PHILLIP A. CLOUGH	Director	August 7, 2012
Phillip A. Clough

/S/ JOHN T. COLEMAN	Director	August 7, 2012
John T. Coleman

/S/ LAURENCE FRANKLIN	Director	August 7, 2012
Laurence Franklin

/S/ PATRICK W. GROSS	Director	August 7, 2012
Patrick W. Gross

/S/ MARGUERITE W. KONDRACKE	Director	August 7, 2012
Marguerite W. Kondracke

/S/ THEODORE J. LEONSIS	Director	August 7, 2012
Theodore J. Leonsis

/S/ JOHN E. LINDAHL	Director	August 7, 2012
John E. Lindahl

/S/ LAURA L. WITT	Director	August 7, 2012
Laura L. Witt

EXHIBIT INDEX

Exhibit No.		Exhibit Description

4.1*		Specimen certificate evidencing shares of common stock
5.1		Opinion of Fulbright & Jaworski L.L.P. regarding legality of securities being registered
23.1		Consent of Deloitte & Touche LLP, independent registered public accounting firm
23.2		Consent of Counsel (contained in Exhibit 5.1)
24.1		Power of Attorney (included as part of signature page to this Registration Statement)
99.1*		2009 Omnibus Incentive Plan and forms of agreements thereunder
99.2**		First Amendment to the Rosetta Stone Inc. 2009 Omnibus Incentive Plan
99.3		Second Amendment to the Rosetta Stone Inc. 2009 Omnibus Incentive Plan

* Incorporated by reference to exhibits filed with the Registrant’s Registration Statement on Form S-1, as amended (Registration No. 333-153632), as declared effective on April 15, 2009

** Incorporated by reference to exhibits filed with the Registrant’s Registration Statement on Form S-8 (Registration No. 333-180483), as declared effective on March 30, 2012

Exhibit 5.1

Fulbright Tower · 1301 McKinney, Suite 5100 · Houston, Texas 77010-3095

Telephone: 713 651 5151 · Facsimile: 713 651 5246

August 7, 2012

Rosetta Stone Inc.
1919 North Lynn Street
7 th Floor
Arlington, Virginia 22209

Ladies and Gentlemen:

We have acted as counsel to Rosetta Stone Inc., a Delaware corporation (the “Company”), in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 1,122,930 shares of the Company’s common stock, par value $0.00005 per share (the “Shares”), that are reserved for issuance under the Company’s 2009 Omnibus Incentive Plan (the “Plan”) as described in the Company’s Registration Statement on Form S-8 (as may subsequently be amended, the “Registration Statement”).

In connection with the foregoing, we have examined the Plan and originals or copies of such corporate records of the Company, certificates and other communications of public officials, certificates of officers of the Company and such other documents as we have deemed relevant or necessary for the purpose of rendering the opinions expressed herein. As to questions of fact material to those opinions, we have, to the extent we deemed appropriate, relied on certificates of officers of the Company and on certificates and other communications of public officials. We have assumed the genuineness of all signatures on, and the authenticity of, all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies thereof, the due authorization, execution and delivery by the parties thereto other than the Company of all documents examined by us, and the legal capacity of each individual who signed any of those documents.

Based upon the foregoing, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plan and pursuant to the agreements that accompany the Plan, will be validly issued, fully paid and nonassessable.

The opinions expressed herein are limited exclusively to applicable federal laws of the United States of America and applicable provisions of, respectively, the Delaware Constitution, the Delaware General Corporation Law and reported judicial interpretations of such law, in each case as currently in effect, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and the reference to this firm wherever it appears in the Registration Statement. This consent is not to be construed as an admission that we are a party whose consent is required to be filed with the

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MINNEAPOLIS · MUNICH · NEW YORK · RIYADH · SAN ANTONIO · ST. LOUIS · WASHINGTON DC

www.fulbright.com

Registration Statement under the provisions of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

	Very truly yours,


	/s/ FULBRIGHT & JAWORSKI L.L.P.

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 13, 2012, relating to the consolidated financial statements of Rosetta Stone Inc. and subsidiaries (the Company), and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Rosetta Stone Inc. for the year ended December 31, 2011.

/s/ Deloitte & Touche LLP

McLean, VA
August 7, 2012

Exhibit 99.3

SECOND AMENDMENT TO THE

ROSETTA STONE INC.

2009 OMNIBUS INCENTIVE PLAN

This Second Amendment (this “ Amendment ”) to the Rosetta Stone Inc. 2009 Omnibus Incentive Plan (the “ Plan ”) is made by Rosetta Stone Inc. (the “ Company ”). This Amendment is effective as of February 22, 2012 (the “ Amendment Effective Date ”), provided the Company’s shareholders approve the adoption of this Amendment within one year after the Amendment Effective Date. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Plan.

WHEREAS, Section 16.1 of the Plan provides that the Board may amend the Plan at any time, subject to certain exceptions;

WHEREAS, the Board has determined that it is in the best interests of the Company to (1) increase the maximum total number of shares of Stock that may be issued by 1,122,930 shares from 3,437,744 shares to 4,560,674 shares, (2) replace the specific limitation on the number of shares that may be granted as Full Value Awards with an alternate method of calculating the number of shares of Stock remaining available for issuance under the Plan (i.e., a “flexible share pool”), and (3) assign a ratio for counting share usage upon issuance of Awards in connection with the establishment of the flexible share pool; and

WHEREAS, the Board now desires to amend the Plan as provided below.

NOW, THEREFORE, pursuant to Section 16.1 of the Plan, the Board amends the Plan as follows:

1. Amendments.

A. Section 2.19 is deleted in its entirety and the following substituted therefor:

“2.19 “ Fair Market Value ” of the Stock as of any particular date means a price that is based on the opening, closing, actual, high, low, or average selling prices of a share of Stock reported on the New York Stock Exchange (“NYSE”) or other established stock exchange (or exchanges) on the applicable date, the preceding trading day, the next succeeding trading day, or an average of trading days, as determined by the Committee in its discretion. Unless the Committee determines otherwise, Fair Market Value means

(a) the closing sale price of the Stock on that date, if the Stock is traded on that date, or

(b) the closing sale price of the Stock on the last trading date immediately preceding that date, if the Stock is not traded on that date;

provided, however, that (x) if the Stock is not so traded, or (y) if, in the discretion of the Committee, another means of determining the fair market value of a share of Stock at such date shall be necessary or advisable, the Committee may provide for another method or means for determining such fair market value, which method or means shall comply with the requirements of a reasonable valuation method as described under Section 409A.”

B. Section 4.1(a) is deleted in its entirety and the following substituted therefor:

“(a) Unless otherwise authorized by the shareholders of the Company and subject to adjustment as provided in Section 4.5, the total number of shares of Stock available for grant under the Plan, including shares subject to Awards previously issued and outstanding under the Plan, may not exceed 4,560,674 (which includes 3,437,744 shares of Stock authorized under the Plan prior to February 22, 2012) (the “ Authorized Shares ”).”

C. Section 4.1(d) is deleted in its entirety and the following substituted therefor:

“(d) Each of the foregoing numerical limits stated in this Section 4.1 shall be subject to adjustment in accordance with the provisions of Section 4.5.”

D. Section 4.2 is deleted in its entirety and the following substituted therefor:

“4.2 Shares That Count Against Limit. The following rules shall apply in determining the number of shares of Stock remaining available for grant under the Plan:

(a) While an Award is outstanding, it shall be counted against the authorized pool of shares of Stock, regardless of its vested status.

(b) The grant of an Option or SAR shall reduce the shares of Stock available for grant under the Plan by one (1) share of Stock for each share of Stock subject to such Award.

(c) Commencing on February 22, 2012, each grant of Restricted Stock, RSU, Performance Stock Awards, Performance Unit Awards, Performance Share, or any Other Stock-Based Awards which are Full Value Awards shall reduce the authorized Stock pool by 1.47 shares of Stock for each share of Stock subject to such Full Value Award.

(d) To the extent that an Award is settled in cash rather than in shares of Stock, the shares of Stock reserved for such Award shall not be deducted from the authorized Stock pool, and such number of credited shares of Stock may again be made subject to Awards under the Plan.

(e) To the extent shares of Stock are withheld from any Award by the Company as full or partial payment of taxes applicable to any Award, such shares shall not be added back to the number of shares of Stock available for issuance under the Plan.

(f) Shares of Stock tendered by a Participant to pay the exercise price of any Option or to satisfy tax-withholding obligations of any Award shall not be added to the authorized Stock pool.

(g) When a SAR is settled in shares of Stock, the number of shares of Stock subject to the SAR under the SAR Award Agreement will be counted against the aggregate number of shares of Stock with respect to which Awards may be granted under the Plan as one (1) share for every share subject to the SAR, regardless of the number of shares used to settled the SAR upon exercise.

(h) If any Award granted under this Plan is cancelled, forfeited, terminates, expires, or lapses for any reason, any shares of Stock subject to such Award again shall be available for the grant of an Award under the Plan. Without limiting the foregoing, to the extent a Full Value Award is forfeited prior to the expiration of the applicable Period of Restriction or Performance Goal period (as applicable), the same number of shares of Stock shall be added to the authorized Stock pool as were deducted when such Award first was granted.”

E . Section 4.3 is deleted in its entirety and the following substituted therefor:

“4.3 Non-Transferability. Except as specified in the applicable Award Agreement or in domestic relations court orders, an Award shall not be transferable by the Holder other than by will or under the laws of descent and distribution, and shall be exercisable, during the Holder’s lifetime, only by him or her; provided, however, no Award may be transferred for value. Any attempted assignment of an Award in violation of this Section shall be null and void. In the discretion of the Committee, any attempt to transfer an Award other than under the terms of the Plan and the applicable Award Agreement may terminate the Award.”

F . Section 4.5(c) is amended by deleting the terms immediately preceding Section 4.5(c)(1)it in its entirety and substituting the following therefor:

“(c) If while unexercised Awards remain outstanding under the Plan (1) the Company shall not be the surviving entity in any merger, consolidation or other reorganization (or survives only as a subsidiary of an entity other than an entity that was wholly-owned by the Company immediately prior to such merger, consolidation or other reorganization), (2) the Company sells, leases or exchanges or agrees to sell, lease or exchange all or substantially all of its assets to any other person or entity (other than an entity wholly-owned by the Company), (3) the Company is to be dissolved or (4) the Company is a party to any other corporate transaction (as defined under section 424(a) of the Code and applicable Department of Treasury regulations) that is not described in clauses (1), (2) or (3) of this sentence (each such event is referred to herein as a “ Corporate Change ”), then, except as a result of the Committee’s effectuation of one or more of the alternatives described below, there shall be no acceleration of the time at which any Award then outstanding may be exercised, and no later than ten days after the consummation of such Corporate Change, the Committee, acting in its sole and absolute discretion without the consent or approval of any Holder, shall act to effect one or more of the following alternatives, which may vary among individual Holders and which may vary among Awards held by any individual Holder (provided that, with respect to a reincorporation merger in which Holders of the Company’s ordinary shares will receive one ordinary share of the successor corporation for each ordinary share of the Company, none of such alternatives shall apply and, without Committee action, each Award shall automatically convert into a similar award of the successor corporation exercisable for the same number of ordinary shares of the successor as the Award was exercisable for ordinary shares of Stock of the Company):”

G . Section 9.10 is amended by deleting it in its entirety and substituting the following therefor:

“9.10 Dividend Equivalents . An Award Agreement for a Performance Stock Award or Performance Unit Award may specify that the Holder shall be entitled to the payment of Dividend Equivalents under the Award; provided that, no credited Dividend Equivalents shall be distributed (without interest) to the Holder unless, and only if, the restrictions imposed on the applicable Performance Stock Award and/or Performance Unit Award lapse.”

H . Section 16.1 is amended by deleting it in its entirety and substituting the following therefor:

“16.1 Amendment, Modification, Suspension, and Termination. Subject to Section 16.2, the Board may, at any time and from time to time, alter, amend, modify, suspend, or terminate the Plan and the Committee may, at any time and from time to time, alter, amend, modify, suspend, or terminate any Award Agreement in whole or in part; provided, however, that, without the prior approval of the Company’s stockholders and except as provided in Section 4.5, the Committee shall not directly or indirectly lower the Option Price of a previously granted Option or the grant price of a previously granted SAR, cancel a previously granted Option or previously granted SAR for a payment of cash, other property or other Awards if the aggregate fair market value of such Award is less than the aggregate Option Price of such Award in the case of an Option or the aggregate grant price of such Award in the case of a SAR, and no amendment of the Plan shall be made without stockholder approval if stockholder approval is required by applicable law or stock exchange rules.”

2. Effect of Amendment.

On and after the effectiveness of this Amendment, each reference in the Plan to “this Plan”, “hereunder”, “hereof” or words of like import referring to the Plan, shall mean and be a reference to the Plan, as amended by this Amendment. Except as amended hereby, the Plan continues and shall remain in full force and effect in all respects.