As filed with the Securities and Exchange Commission August 11, 1997.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NEXAR TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
04-3268334
(I.R.S. employer identification no.)
Delaware
(State or other jurisdiction of incorporation or organization)
182 Turnpike Road Westborough, MA 01581
(Address of principal executive offices) (Zip Code)
1995 Stock Option Plan
1996 Employee Stock Purchase Plan
1996 Non-Employee Directors Plan
(Full title of plans)
Albert J. Agbay
Chief Executive Officer
Nexar Technologies, Inc.
182 Turnpike Road
Westborough, MA 01581
(Name and address of agent for service)
(508) 836-8700
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount maximum maximum Amount
securities to be offering aggregate of
to be registered price per offering registration
registered (1) share (2) price (2) fee
------------ ---------- ---------- --------- ------------
Common Stock,
$.01 par 5,600,000
value shares $5.625 $31,500,000 $9,545.45
(1) Plus such additional number of shares as may be required
pursuant to the plans in the event of a stock dividend, split-up
of shares, recapitalization or other similar change in the Common
Stock.
(2) Estimated solely for the purpose of calculating the
registration fee, in accordance with Rule 457(h)(1), on the basis
of the average of the high and low bids of the Common Stock as
reported on The Nasdaq National Market on August 5, 1997.
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance
with the requirements of Form S-8, and relates to an aggregate of
5,600,000 shares of Common Stock, $.01 par value, of Nexar
Technologies, Inc. (the "Company") which have been reserved for
issuance under the Company's 1995 Stock Option Plan (5,300,000
shares), the Company's 1996 Employee Stock Purchase Plan (200,000
shares), and the Company's 1996 Non-Employee Directors Stock
Option Plan (100,000 shares).
As of June 30, 1997, options exercisable for up to 4,065,780
shares of the Common Stock of the Company had been granted or
authorized for granting to employees and directors of the Company
under the 1995 Stock Option Plan. As of June 30, 1997, 2,048,020
of the 4,065,780 option shares so granted or authorized for
granting were vested and therefore then exercisable. Approximately
98% of such vested shares are subject to "lock-up" agreements prohibiting
the resale or other transfer of any such shares acquired under such
options prior to October 8, 1997. As of the date of the filing of
this Registration Statement no options were outstanding under either
the Employee Stock Purchase Plan or the Non-Employee Directors Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are hereby incorporated by reference
in this Registration Statement:
(a) The Company's prospectus dated April 8, 1997 filed
with the Securities and Exchange Commission (the
"Commission") pursuant to Rule 424(b) under the Securities
Act of 1933, as amended;
(b) The Company's quarterly report for the quarter
ended March 31, 1997 on Form 10-Q filed with the Commission
on May 14, 1997; and
(c) The description of the Company's Common Stock
incorporated by reference in the Company's registration
statement on Form 8-A (File No. 000-29194), filed with the
Commission on March 17, 1997, from the Company's
registration statement on Form S-1 (File No. 333-18489)
filed with the Commission on December 20, 1996.
In addition, all documents filed by the Company after the initial
filing date of this registration statement pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and prior to the filing of
a post-effective amendment which indicates that all shares
registered hereunder have been sold or which de-registers all
shares then remaining unsold, shall be deemed to be incorporated
by reference in this registration statement and to be a part
hereof from the date of filing of such documentation.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the shares registered hereby have been
passed upon by McDermott, Will & Emery, a partnership including
professional corporations. David A. Cifrino, a partner of
McDermott, Will & Emery, is an Assistant Secretary of the
Corporation.
II-1
Item 6. Indemnification of Officers and Directors
Section 145 of the General Corporation Law of the State of
Delaware provides that a corporation may indemnify a director,
officer, employee or agent against expenses (including attorneys'
fees), judgments, fines and for amounts paid in settlement in
respect of or in successful defense of any action, suit or
proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful.
Article Twelfth of the Company's Restated Certificate of
Incorporation provides that no director of the Company shall be
personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law or (iv) for
any transaction from which the director derived an improper
personal benefit. Article Twelfth further provides that a
director's personal liability shall be eliminated or limited in
the future to the fullest extent permitted from time to time by
the Delaware General Corporation Law.
Article Thirteenth of the Company's Restated Certificate of
Incorporation provides that the Company shall, to the fullest
extent permitted from time to time under the Delaware General
Corporation Law, indemnify each of its directors and officers
against all expenses (including attorneys' fees and expenses),
judgments, fines and amounts paid in settlement in respect to any
action, suit or proceeding in which such director or officer may
be involved or with which he may be threatened, while in office
or thereafter, by reason of his or her actions or omissions in
connection with services to the company, such indemnification to
include prompt payment of expenses in advance of the final
disposition of any such action, suit or proceeding.
Palomar Medical Technologies, Inc., the majority stockholder
of the Company, maintains a directors and officers liability
insurance policy for the benefit of its directors and officers
and the directors and officers of its majority owned
subsidiaries, including the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
II-2
Item 8. Exhibits
5.1 Opinion of McDermott, Will & Emery as to the legality
of the shares being registered.
10.1 The Company's 1995 Stock Option Plan (As Amended And
Restated on February 28, 1997) (incorporated by
reference to Exhibit 10.7 of the Company's Registration
Statement on Form S-1 (File No. 333-18489)).
10.2 The Company's 1996 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.8 of the
Company's Registration Statement on Form S-1 (File No.
333-18489)).
10.3 The Company's 1996 Non-Employee Directors Stock Option
Plan (incorporated by reference to Exhibit 10.9 of the
Company's Registration Statement on Form S-1 (File No.
333-18489)).
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of McDermott, Will & Emery (included in Exhibit
5.1).
24.1 Power of Attorney (included in page
II-6).
Item 9. Undertakings
(a) The 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 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;
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, as amended (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; and
II-3
(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 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 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.
(h) 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 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-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing a Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town
of Westborough, Commonwealth of Massachusetts as of August 7,
1997.
Nexar Technologies, Inc.
(Issuer and Employer)
By: Albert J. Agbay
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints Albert J. Agbay,
Gerald Y. Hattori and David A. Cifrino, jointly and severally,
his true and lawful attorneys-in-fact and agents with full powers
of substitution, 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 all 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 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
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 thereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below as of August 7,
1997 by the following persons in the capacities indicated.
Name Capacity
Albert J. Agbay Chairman of the Board, President
& Chief Executive Officer
(Principal Executive Officer)
Gerald Y. Hattori Vice President of Finance, Chief
Financial Officer and Treasurer
(Principal Financial
& Accounting Officer)
Steven Georgiev Director
Joseph P. Caruso Director
Joseph E. Levangie Director
Buster C. Glosson Director
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INDEX TO EXHIBITS
Exhibit
Number
5.1 Opinion of McDermott, Will & Emery as to the legality
of the shares being registered.
10.1 The Company's 1995 Stock Option Plan (As Amended And
Restated on February 28, 1997) (incorporated by
reference to Exhibit 10.7 of the Company's Registration
Statement on Form S-1 (File No. 333-18489)).
10.2 The Company's 1996 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.8 of the
Company's Registration Statement on Form S-1 (File No.
333-18489)).
10.3 The Company's 1996 Non-Employee Directors Plan
(incorporated by reference to Exhibit 10.9 of the
Company's Registration Statement on Form S-1 (File No.
333-18489)).
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of McDermott, Will & Emery (included in Exhibit
5.1).
24.1 Power of Attorney (included in page II-6).
II-7
McDERMOTT, WILL & EMERY Exhibit 5.1
75 State Street
Boston, Massachusetts 02109
August 11, 1997
Nexar Technologies, Inc.
182 Turnpike Road
Westborough, MA 01581
Gentlemen:
This opinion is delivered to you in connection with the
registration statement on Form S-8 (the "Registration Statement")
to be filed on or about August 11, 1997 by Nexar Technologies,
Inc. (the "Company") under the Securities Act of 1933, as
amended, for registration under said Act of 5,600,000 shares of
common stock, $0.01 par value (the "Common Stock"), of the
Company.
We are familiar with the Company's Restated Certificate of
Incorporation, its By-Laws as amended, and the records of its
corporate proceedings, as well as the Registration Statement. We
have also examined such other documents, records and certificates
and made such further investigation as we have deemed necessary
for the purposes of this opinion.
Based upon and subject to the foregoing, we are of the
opinion that the shares of Common Stock to be sold by the Company
under its 1995 Stock Option Plan, its 1996 Employee Stock
Purchase Plan and its 1996 Non-Employee Directors Stock Option
Plan, each as in effect on the date hereof, when issued against
receipt of the agreed purchase price therefor, will be legally
issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection
with the Registration Statement and consent to the filing of this
opinion as an exhibit to the Registration Statement. We further
consent to the reference to this firm in the section entitled
"Interests of Named Experts and Counsel" in the Registration
Statement.
Very truly yours,
McDERMOTT, WILL & EMERY
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our
report dated January 24, 1997 (except with respect to the matter
discussed in Note 10 as to which the date is February 28, 1997)
on Nexar Technologies, Inc.'s consolidated financial statements
for the year ended December 31, 1996 included in Registration
Statement No. 333-18489 on Form S-1 and to all references to our
Firm included in this Registration Statement.
Arthur Andersen LLP
Boston, Massachusetts
August 7, 1997
