<PAGE>
As filed with the Securities and Exchange Commission on August 28, 1998.
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)
257 TURNPIKE ROAD SOUTHBOROUGH, MA 01772
(Address of principal executive offices) (Zip Code)
1998 NON-QUALIFIED STOCK OPTION PLAN
(Full title of plans)
ALBERT J. AGBAY
CHIEF EXECUTIVE OFFICER
NEXAR TECHNOLOGIES, INC.
257 TURNPIKE ROAD
SOUTHBOROUGH, MASSACHUSETTS 01772
(Name and address of agent for service)
(508) 485-7900
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
Proposed Proposed
Title of Maximum maximum Amount
securities Amount Offering aggregate of
to be to be price per offering registration
registered registered (1) share (2) price (2) fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 2,500,000 $.34375 $859,375 $254.00
$0.01 par shares
value
=======================================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
Plan 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 25,
1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents filed by the Company with the Commission (File No.
0-29194) are incorporated herein by reference: (1) the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1997 filed on March 31,
1998; (2) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998; (3) the Company's definitive Proxy Statement
for the Annual Meeting of Stockholders of the Company filed on April 30, 1998;
and (4) the Company's Registration Statement on Form 8-A registering the
Company's Common Stock under Section 12(g) of the Exchange Act filed on
March 17, 1997.
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 legality of the Common Stock offered hereby is being passed upon for the
Company by McDermott, Will & Emery (a partnership including professional
corporations), Boston, Massachusetts. David A. Cifrino, the Secretary of the
Company, is the President of David A. Cifrino, P.C., a Massachusetts
professional corporation which is a partner of McDermott, Will & Emery.
II-1
<PAGE>
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.
The Company, maintains a directors and officers liability insurance policy
for the benefit of its directors and officers.
II-2
<PAGE>
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
5.1 Opinion of McDermott, Will & Emery as to the legality of the shares
being registered.
10.1 1998 Non-Statutory Stock Option Plan
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of McDermott, Will & Emery (included in Exhibit 5.1).
25.1 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
(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
II-3
<PAGE>
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
<PAGE>
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 Southborough, Commonwealth of Massachusetts as of
August 26, 1998.
Nexar Technologies, Inc.
(Issuer and Employer)
By: Albert J. Agbay,
Chief Executive Officer
II-5
<PAGE>
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
Steven Georgiev, 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 26, 1998 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 E. Levangie Director
II-6
<PAGE>
INDEX TO EXHIBITS
-----------------
5.1 Opinion of McDermott, Will & Emery as to the legality of the shares
being registered.
10.1 1998 Non-Statutory Stock Option Plan
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of McDermott, Will & Emery (included in Exhibit 5.1).
25.1 Power of Attorney (included in page II-6).
<PAGE>
Exhibit 5.1
-----------
August 26, 1998
Nexar Technologies, Inc.
257 Turnpike Road
Westborough, MA 01772
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 28, 1998 by Nexar Technologies, Inc. (the "Company") under the Securities
Act of 1933, as amended, for registration under said Act of 2,500,000 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 1998 Non-Statutory
Stock Option Plan 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
<PAGE>
EXHIBIT 10.1
NEXAR TECHNOLOGIES, INC.
1998 NON-STATUTORY STOCK OPTION PLAN
1. Purpose. The purpose of this 1998 Non-Statutory Stock Option Plan (the
-------
"Plan") is to advance the interest of Nexar Technologies, Inc. (the "Company")
by strengthening the ability of the Company to attract, retain and motivate key
employees (other than executive officers, who are not eligible to participate in
the Plan) and consultants by providing them with an opportunity to purchase
stock of the Company or otherwise share in the appreciation of such stock. It is
intended that this purpose will be effected by the granting of non-statutory
options (i.e., options which are not intended to qualify as "incentive stock
options" as described in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code")).
2. Effective Dates. The Plan originally became effective on August 21, 1998,
---------------
the date it was adopted by the Board of Directors of the Company (the "Board").
To the extent at any time that amendments are made to the Plan for which
stockholder approval is necessary under applicable tax or securities laws or
under the Board action adopting such amendment, options that may be granted only
as a result of such amendments may be granted before such approval, but no such
options may be exercised until such approval is obtained and such options will
be null and void if such approval is not obtained.
3. Stock Subject to the Plan. The number of shares that may be issued under
-------------------------
this Plan shall not exceed in the aggregate 2,500,000 shares of the common
stock, $0.01 par value, of the Company (the "Shares"). Any Shares subject to an
option which for any reason expires or is terminated unexercised as to such
Shares may again be the subject of an option under the plan.
<PAGE>
The Shares delivered upon exercise of options under this Plan may, in whole or
in part, be either authorized but unissued Shares reacquired by the Company.
4. Administration. This Plan shall be administered by a committee (the
--------------
"Committee") consisting of two (2) or more members of the Board. Subject to the
provisions of this Plan, the Committee shall have full power to construe and
interpret the Plan and to establish, amend and rescind rules and regulations for
its administration. Any decisions made with respect thereto shall be final and
binding on the Company, the optionees and all other persons.
5. Eligible Participants. Options may be granted to such key employees, other
---------------------
than executive officers, or consultants of the Company or of any of its present
or future subsidiaries, as are selected by the Committee.
6. Duration of the Plan. This Plan shall terminate on August 21, 2008, unless
--------------------
terminated earlier pursuant to Paragraph 12 hereafter, and no options may be
granted thereafter.
7. Terms and Conditions of Options. Options granted under this Plan shall be
-------------------------------
evidenced by stock option agreements not inconsistent with this Plan and in such
form as the Committee shall approve from time to time, which agreements shall
evidence among their terms and conditions the following:
(a) Price. The purchase price per Share payable upon the exercise of each
-----
option granted hereunder shall be determined by the Committee at the time the
option is granted.
(b) Number of Shares. Each option agreement shall specify the number of
----------------
Shares to which it pertains.
<PAGE>
(c) Exercise of Options. Each option shall be exercisable for the full
-------------------
amount or for any part thereof and at such intervals or in such installments as
the Committee may determine at the time it grants such option; provided,
however, that no option shall be exercisable with respect to any Shares later
than ten (10) years after the date of the grant of such option.
(d) Notice of Exercise and Payment. An option shall be exercisable only be
------------------------------
delivery of a written notice to the Company's Treasurer, or any other officer of
the Company designated by the Committee to accept such notices on its behalf,
specifying the number of Shares for which it is exercised. If said Shares are
not at that time effectively registered under the Securities Act of 1933, as
amended, the optionee shall include with such notice a letter, in form and
substance satisfactory to the Company, confirming that he Shares are being
purchased for the optionee's own account for investment and not with a view to
distribution. Payment shall be made in full at the time the option is exercised.
Payment shall be made by (i) cash, (ii) cashier's or certified check, (iii) if
permitted by the Committee, by promissory note, or (v) by a combination of (i),
(ii), (iii) or (iv).
(e) Withholding Taxes; Delivery of Shares. The Company's obligation to
-------------------------------------
deliver Shares upon exercise of an option, in whole or in part, shall be subject
to the optionee's satisfaction of all applicable federal, state and local income
and employment tax withholding obligations. The optionee may satisfy the
obligation, in whole or in part, by electing to have the Company withhold Shares
having a value equal to the amount required to be withheld. The value of Shares
to be withheld shall be based on the fair market value of the Shares on the date
the amount of tax to be withheld is to be determined (the "Tax Date"). The
optionee's election to have Shares withheld for this purpose will be subject to
the following restrictions: (1) the
<PAGE>
election must be made prior to the Tax Date, (2) the election must be
irrevocable, and (3) the election will be subject to the right of the committee
to disapprove the election.
(f) Non-Transferability. No option shall be transferable by the optionee
-------------------
otherwise than by will or the laws of descent and distribution, and each option
shall be exercisable during his lifetime only by him.
(g) Termination of Options. Each option shall terminate and may no longer be
----------------------
exercised if the optionee ceases for any reason to be an employee of the
Company, or its parent or a subsidiary, in accordance with the following
provisions:
(i) if the optionee's employment shall have terminated by
resignation or other voluntary action, other than because of a material
change in optionee's duties and responsibilities with the Company, or
if such employment shall have been terminated by the Company
involuntarily for cause, the option shall terminate and may no longer
be exercised;
(ii) if the optionee's employment shall have been terminated
involuntarily and without cause, or because of a material change in
optionee's duties and responsibilities with the Company, the optionee
may at any time within a period of three (3) months after such
termination of employment exercise the option to the extent it was
exercisable on the date of termination of the optionee's employment;
(iii) if the optionee's employment shall have been terminated
because of disability within the meaning of Section 22(e)(3) of the
Code, the optionee may at any time within a period of one (1) year
after such termination of employment exercise the option to the extent
that the option was exercisable on the date of termination of the
optionee's employment; or
(iv) if the optionee's employment shall have been terminated
because of his death, the option, to the extent that the optionee was
entitled to exercise it on the date of death, may be exercised within a
period of one (1) year after the optionee's death by the person or
persons to whom the optionee's rights under the option shall pass by
will or by the laws of descent and distribution;
provided, however, that no option may not be exercised to any extent by anyone
after the expiration date.
<PAGE>
(h) Rights as Stockholder. The optionee shall have no rights as a
---------------------
stockholder with respect to any Shares covered by his option until the date of
issuance of a stock certificate to him for such Shares.
(i) Repurchase of Shares by the Company. Any Shares purchased by an
-----------------------------------
optionee upon exercise of an option may in the discretion of the Committee be
subject to repurchase by the Company if and to the extent specifically set forth
in the option agreement pursuant to which the Shares were purchased.
8. Stock Dividends; Stock Splits; Stock Combination; Recapitalizations.
-------------------------------------------------------------------
Appropriate adjustment shall be made in the maximum number of Shares subject to
the Plan and in the number, kind, and option price of Shares covered by
outstanding options granted hereunder to give effect to any stock dividends,
stock splits, stock combinations, recapitalizations and other similar changes in
the capital structure of the Company after the effective date of the Plan.
9. Merger; Sale of Assets; Dissolution. In the event of a change of the
-----------------------------------
Shares resulting from a merger or similar reorganization as to which the Company
is the surviving corporation, the number and kind of shares which thereafter may
be optioned and sold under the Plan, and the number and kind of shares then
subject to options granted hereunder and the option price per share thereof
shall be appropriately adjusted in such manner as the Committee may deem
equitable to prevent substantial dilution or enlargement of the rights available
or granted hereunder. Except as otherwise determined by the Committee, a merger
or a similar reorganization which the Company does not survive, or a sale of all
or substantially all of the assets of the Company, shall cause every option
outstanding hereunder to terminate, to the extent not then exercised, unless any
surviving entity agrees to assume the obligations hereunder.
<PAGE>
10. Definitions.
-----------
(a) The term "key employees" refers to those non-executive administrative,
technical or managerial employees who are determined by the Committee to be
eligible for options under this Plan.
(b) The term "optionee" means a key employee to whom an option is granted
under this Plan.
(c) The term "parent" shall have, for purposes of this plan, the meaning
ascribed to it under Section 424(e) of the Code and the regulations
promulgated thereunder.
(d) The term "subsidiary" shall have, for purposes of this Plan, the meaning
ascribed to it under Section 424(f) of the Code and the regulations
promulgated thereunder.
11. Termination or Amendment of Plan. The Board may at any time terminate the
--------------------------------
Plan or make such changes in or additions to the Plan as it deems advisable,
provided that no such termination or amendment shall adversely affect or impair
any then outstanding option without the consent of the optionee holding such
option.
<PAGE>
Exhibit 23.1
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 13, 1998 (except for Note 10
which is as of March 20, 1998) included in Nexar Technologies, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1997 and all references to
our firm included in this Registration Statement.
BDO Seidman, LLP
Boston, Massachusetts
August 25, 1998
<PAGE>
Exhibit 23.2
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in the Registration Statement on Form S-8 of Nexar Technologies,
Inc. 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 the financial
statements of Nexar Technologies, Inc. as of December 31, 1995 and 1996, and
for the period from inception (March 7, 1995) to December 31, 1995 and for
the year ended December 31, 1996 included in Nexar Technologies, Inc.
Form 10-K for the year ended December 31, 1997 and to all references to our
firm included in the Registration Statement. It should be noted that we have
not audited any financial statements of Nexar Technologies, Inc. subsequent to
December 31, 1996.
Arthur Andersen LLP
Boston, Massachusetts
August 25, 1998
