As filed with the Securities and Exchange Commission on August 9, 2013

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., 7th Fl, Arlington, Virginia

 

22209

(Address of Principal Executive Offices)

 

(Zip Code)

 

2009 Omnibus Incentive Plan (Amended and Restated)

(Full title of the plan)

 

Michael C. Wu

General Counsel

1919 North Lynn Street

7th Floor

Arlington, Virginia 22209

Telephone: 800-788-0822

 

Copies to:

 

Brian P. Fenske.

Fulbright & Jaworski LLP

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

 

2,317,000

 

$

16.72

 

$

38,728,655

 

$

5,283

 

(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, 2013, 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”).

 

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.  The registration of such shares of Common Stock was filed on a Form S-8 Registration Statement with the SEC on August 8, 2012 (File Number 333-183148), in accordance with the Securities Act (the “Third Registration Statement”, together with the First Registration Statement, and the Second Registration Statement, the “Prior Registration Statements”).

 

The Company’s Board of Directors adopted, and on May 23, 2013, the stockholders of the Company approved, a third amendment to the 2009 Plan, incorporated in the 2009 Omnibus Incentive Plan (Amended and Restated Effective February 21, 2013) to provide that, among other things, an additional 2,317,000 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 Statement 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, 2012 as filed with the Commission on March 7, 2013;

 

(ii)                                     Registrant’s Quarterly Report on Form 10-Q filed for its fiscal quarter ended March 31, 2013, as filed with the Commission on May 8, 2013;

 

(iii)                                  Registrant’s Quarterly Report on Form 10-Q filed for its fiscal quarter ended June 30, 2013, as filed with the Commission on August 7, 2013;

 

(iv)                                 Registrant’s Current Reports on Form 8-K filed with the Commission on March 12, 2013, April 2, 2013, April 4, 2013, April 9, 2013, May 28, 2013, June 6, 2013, June 11, 2013, June 13, 2013, July 25, 2013 and August 1, 2013; 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

 

(v)                                    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

 

2


 

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.

 

3


 

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, Commonwealth of Virginia, on August 9, 2013.

 

 

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 9, 2013

Stephen M. Swad

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ THOMAS M. PIERNO

 

Chief Financial Officer

 

August 9, 2013

Thomas M. Pierno

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

 

 

/s/ JAMES P. BANKOFF

 

Director

 

August 9, 2013

James P. Bankoff

 

 

 

 

 

 

 

 

 

/s/ PHILLIP A. CLOUGH

 

Director

 

August 9, 2013

Phillip A. Clough

 

 

 

 

 

 

 

 

 

/s/ JOHN T. COLEMAN

 

Director

 

August 9, 2013

John T. Coleman

 

 

 

 

 

 

 

 

 

/s/ LAURENCE FRANKLIN

 

Director

 

August 9, 2013

Laurence Franklin

 

 

 

 

 

 

 

 

 

/s/ PATRICK W. GROSS

 

Director

 

August 9, 2013

Patrick W. Gross

 

 

 

 

 

 

 

 

 

/s/ MARGUERITE W. KONDRACKE

 

Director

 

August 9, 2013

Marguerite W. Kondracke

 

 

 

 

 

 

 

 

 

/s/ LAURA L. WITT

 

Director

 

August 9, 2013

Laura L. Witt

 

 

 

 

 

4


 

EXHIBIT INDEX

 

Exhibit No.

 

Exhibit Description

 

 

 

4.1*

 

Specimen certificate evidencing shares of common stock

5.1

 

Opinion of Fulbright & Jaworski LLP regarding legality of securities being registered

23.1

 

Consent of Deloitte & Touche LLP, McLean Office, independent registered public accounting firm

23.2

 

Consent of Deloitte & Touche LLP, Seattle Office, independent auditor

23.3

 

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**

 

Rosetta Stone 2009 Omnibus Incentive Plan and forms of agreements thereunder (Amended and Restated effective February 21, 2013)

 

*     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 Appendix A filed with the Registrant’s’s Proxy Statement on Form DEF 14A (Registration No. 001-34283), as declared effective on April 12, 2013.

 

5

Exhibit 5.1

 

August 9, 2013

 

Rosetta Stone Inc.

1919 North Lynn Street

7th 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 2,317,000 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 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,

 

 

FULBRIGHT & JAWORSKI LLP

 

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 7, 2013, relating to the consolidated financial statements of Rosetta Stone Inc. and subsidiaries, and the effectiveness of the Rosetta Stone Inc. and subsidiaries’ internal control over financial reporting, appearing in the Annual Report on Form 10-K of Rosetta Stone Inc. and subsidiaries for the year ended December 31, 2012.

 

 

/s/ Deloitte & Touche LLP

 

McLean, VA

August 9, 2013

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT AUDITOR

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated June 12, 2013, relating to the financial statements of Livemocha, Inc., appearing in the Current Report on Form 8-K/A of Rosetta Stone Inc. dated June 13, 2013.

 

/s/ Deloitte & Touche LLP

 

Seattle, Washington

August 9, 2013