As filed with the Securities and Exchange Commission on October 15, 1997
Registration No. 33-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
____________
RCN CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 22-3498533
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
105 Carnegie Center
Princeton, NJ 08540-6215
609-734-3700
(Address of principal executive offices)
____________
RCN CORPORATION 401(k) PLAN
(Full title of the Plan)
____________
John D. Filipowicz, Esq.
Senior Vice President, Assistant General Counsel
and Assistant Secretary
105 Carnegie Center
Princeton, NJ 08540-6215
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (609) 734-3700
____________
Copy to:
William L. Taylor, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
<TABLE>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed
Maximum
Amount Offering Proposed Amount of
Title of to be Price Maximum Aggregate Registration
Securities to be Registered Registered(1) per Share(2) Offering Price Fee
--------------------------- ------------- ------------ ----------------- ------------
<S> <C> <C> <C> <C>
Common Stock (par value $1.00 per
share)............................... 250,000 $42.25 $10,562,500 $3,201
====================================================================================================================
(1) Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the "1933 Act"), this registration
statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan referenced above.
(2) Estimated pursuant to Rule 457(C) under the 1933 Act solely for the
purpose of computing the registration fee, based upon the closing price of
the securities being registered hereby on NASDAQ on October 13, 1997.
</TABLE>
This Registration Statement Includes a Total of 13 Pages.
Exhibit Index on Page 11.
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PART I
The following documents listed under this Part I and the
documents incorporated by reference under Item 3 of Part II to this Form S-8,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended (the "1933 Act"), and are
incorporated herein by reference.
ITEM 1. PLAN INFORMATION
This information required to be provided to participants
pursuant to this Item is set forth in the Prospectus for the RCN Corporation
401(k) Plan (the "Plan"), sponsored by RCN Corporation.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The written statement required to be provided to participants
pursuant to this Item is set forth in the Prospectus referenced in Item 1
above.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
RCN Corporation (the "Registrant") hereby files this
Registration Statement with the Securities and Exchange Commission (the
"Commission") on Form S-8 to register 250,000 shares of the Registrant's
Common Stock, par value $1.00 per share ("Common Stock"), for issuance
pursuant to the Plan and such indeterminate number of additional shares which
may be offered and issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions pursuant to the Plan.
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
(Commission 1934 Act File Number 0-22825), are incorporated by reference
herein:
(1) The Registrant's 1934 Act Registration Statement on Form 10,
filed with the Commission on July 9, 1997, as amended from time to time, (the
"Form 10").
(2) All other reports filed with the Commission by the
Registrant or the Plan pursuant to Section 13(a), 13(c), 14 and 15(d) of the
1934 Act subsequent to the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered herein
have been sold or which deregisters all securities then remaining unsold.
(3) The description of the Registrant's Common Stock contained
in the Registrant's Form 10, including any amendment thereto or report filed
for the purpose of updating such description.
Any statement contained herein or made in a document
incorporated or deemed to be incorporated by reference herein 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 other subsequently
filed document which is also incorporated or 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 4. DESCRIPTION OF SECURITIES
Not applicable, see Item 3(3) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Raymond B. Ostroski, Esq. holds options to purchase shares of
Common Stock and/or holds, directly or indirectly, shares of Common Stock, the
aggregate value of which such holdings exceeds $50,000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which enables a corporation in its certificate
of incorporation to eliminate or limit the personal liability of a director
for violations of the director's fiduciary duty, except (i) for breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) pursuant to section 174 of the DGCL
(providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from
which a director derived an improper personal benefit. The Registrant's
certificate of incorporation eliminates the liability of directors to the
fullest extent permitted by Delaware law.
Reference is made to section 145 of the DGCL which provides
that a corporation may indemnify directors and officers as well as other
employees and agents against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement in connection with specified actions,
suits or proceedings, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation (a "derivative
action")) if they act in good faith and in a manner they 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 their conduct was unlawful. A similar standard is applicable in the
case of derivative actions, except that indemnification only extends to
expenses (including attorney's fees) incurred in connection with defense or
settlement of such action, and the statute requires court approval before
there can be indemnification that may be granted by a corporation's charter,
by-laws, disinterested director vote, stockholder vote, agreement or
otherwise. The Registrant's certificate of incorporation provides for the
indemnification of its directors, officers, employees and agents to the
fullest extent permitted by Delaware Law.
In addition, the Registrant has purchased and maintains
directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
Exhibit
Number Exhibit
- -------- -------
<S> <C>
4.01 Form of Amended and Restated Certificate of Incorporation of the Registrant. (Incorporated
herein by reference to Exhibit 3.1 to the Form 10).*
4.02 Form of Amended and Restated Bylaws of the Registrant. (Incorporated herein by reference
to Exhibit 3.2 to the Form 10).*
5.01 Opinion of Raymond B. Ostroski, Esq. as to the legality of the Common Stock being registered
pursuant hereto. The Registrant undertakes that it will submit the Plan and all amendments
thereto to the Internal Revenue Service (the "Service") in a timely manner and that it will
make all changes required by the Service to issue a determination letter with respect to the
Plan.
23.01 Consent of Independent Public Accountants--Coopers & Lybrand L.L.P.
23.02 Consent of Raymond B. Ostroski, Esq. (included in his opinion filed as Exhibit 5.01).
24.01 Powers of Attorney (included on the signature page of this registration statement).
<FN>
- -------------
<F1>
* Incorporated by reference.
</FN>
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(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 1933 Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in this Registration
Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934
Act that are incorporated by reference into this Registration
Statement;
(2) That for the purpose of determining any liability under
the 1933 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 undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
1934 Act (and where applicable, each filing of the Plan's annual report
pursuant to Section 15(d) of the 1934 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 1933 Act may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the 1933 Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such 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 whether such indemnification by it is against
public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
EXPERTS
The financial statements incorporated in this Form S-8 by
reference to the Form 10 as of December 31, 1996 and 1995 and for the years
ended December 31, 1996, 1995 and 1994 have been so incorporated in reliance
on the report of Coopers & Lybrand L.L.P., independent accountants, given on
the authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the Common Stock offered hereunder has been
passed upon by Raymond B. Ostroski, Esq., Princeton, New Jersey.
SIGNATURES
THE REGISTRANT. PURSUANT TO THE REQUIREMENTS OF THE
SECURITIES ACT OF 1933, 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
PRINCETON, STATE OF NEW JERSEY, ON THIS 15th DAY OF OCTOBER 1997.
RCN CORPORATION
By: /s/ John Filipowicz
-------------------------------
John Filipowicz
Vice President, Assistant
General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE
SIGNATURE APPEARS BELOW, CONSTITUTES AND APPOINTS DAVID C. MCCOURT, BRUCE
C. GODFREY AND MICHAEL J. MAHONEY AND EACH OF THEM, OUR TRUE AND LAWFUL
ATTORNEYS-IN-FACT AND AGENTS, WITH FULL POWER OF SUBSTITUTION AND
RESUBSTITUTION, TO DO ANY AND ALL ACTS AND THINGS AND EXECUTE, IN THE NAME
OF THE UNDERSIGNED, ANY AND ALL INSTRUMENTS WHICH SAID ATTORNEYS-IN-FACT
AND AGENTS MAY DEEM NECESSARY OR ADVISABLE IN ORDER TO ENABLE RCN
CORPORATION TO COMPLY WITH THE SECURITIES ACT OF 1933 AND ANY REQUIREMENTS
OF THE SECURITIES AND EXCHANGE COMMISSION IN RESPECT THEREOF, IN CONNECTION
WITH THE FILING WITH THE SECURITIES AND EXCHANGE COMMISSION OF THE
REGISTRATION STATEMENT ON FORM S-8 UNDER THE SECURITIES ACT OF 1933,
INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION, POWER AND AUTHORITY TO SIGN
THE NAME OF THE UNDERSIGNED TO SUCH REGISTRATION STATEMENT, AND ANY
AMENDMENTS TO SUCH REGISTRATION STATEMENT (INCLUDING POST-EFFECTIVE
AMENDMENTS), AND TO FILE THE SAME WITH ALL EXHIBITS THERETO AND OTHER
DOCUMENTS IN CONNECTION THEREWITH, WITH THE SECURITIES AND EXCHANGE
COMMISSION, TO SIGN ANY AND ALL APPLICATIONS, REGISTRATION STATEMENTS,
NOTICES OR OTHER DOCUMENTS NECESSARY OR ADVISABLE TO COMPLY WITH APPLICABLE
STATE SECURITIES LAWS, AND TO FILE THE SAME, TOGETHER WITH OTHER DOCUMENTS
IN CONNECTION THEREWITH WITH THE APPROPRIATE STATE SECURITIES AUTHORITIES,
GRANTING UNTO SAID ATTORNEYS-IN-FACT AND AGENTS, AND EACH OF THEM, FULL
POWER AND AUTHORITY TO DO AND TO PERFORM EACH AND EVERY ACT AND THING
REQUISITE OR NECESSARY TO BE DONE IN AND ABOUT THE PREMISES, AS FULLY AND
TO ALL INTENTS AND PURPOSES AS THE UNDERSIGNED MIGHT OR COULD DO IN PERSON,
HEREBY RATIFYING AND CONFIRMING ALL THAT SAID ATTORNEYS-IN-FACT AND AGENTS,
AND ANY OF THEM, OR THEIR SUBSTITUTES, 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 DATE INDICATED.
<TABLE>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ David C. McCourt
- ------------------------- Chief Executive Officer October 15, 1997
David C. McCourt (Principal Executive Officer);
Chairman of the Board
/s/ Bruce C. Godfrey
- ------------------------- Executive Vice President and October 15, 1997
Bruce C. Godfrey Chief Financial Officer,
Director (Principal Financial
Officer and Principal Accounting
Officer
/s/ Michael J. Mahoney
- ------------------------- President and Chief Operating October 15, 1997
Michael J. Mahoney Officer, Director
/s/ James Q. Crowe
- ------------------------- Director October 15, 1997
James Q. Crowe
/s/ Thomas May
- ------------------------- Director October 15, 1997
Thomas May
/s/ Walter Scott, Jr.
- ------------------------- Director October 15, 1997
Walter Scott, Jr.
/s/ Michael B. Yanney
- ------------------------- Director October 15, 1997
Michael B. Yanney
- ------------------------- Director October 15, 1997
Alfred Fasola
/s/ Thomas P. O'Neill, III
- ------------------------- Director October 8, 1997
Thomas P. O'Neill, III
- ------------------------- Director October 15, 1997
Richard R. Jaros
/s/ Eugene Roth
- ------------------------- Director October 15, 1997
Eugene Roth
/s/ Stuart Graham
- ------------------------- Director October 8, 1997
Stuart Graham
</TABLE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Plan has duly caused this registration statement or amendment thereto to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Princeton, State of New Jersey, on October 15, 1997.
THE RCN CORPORATION 401(k) PLAN
By /s/ Gary Isaacs
------------------------------------
Gary Isaacs
(Vice President, Human Resources)
INDEX TO EXHIBITS
<TABLE>
Sequentially
Exhibit Number Exhibit Numbered Page
- -------------- ------- _____________
<S> <C>
4.01 Form of Certificate of Incorporation of the Registrant. *
(Incorporated herein by reference to Exhibit 3.1 to the
Registrant's 1934 Act Registration Statement on Form 10,
1934 Act File No. 0-22825 (the "Form 10")).*
4.02 Form of Amended and Restated Bylaws of the Registrant. *
(Incorporated herein by reference to Exhibit 3.2 to the Form
10).*
5.01 Opinion of Raymond B. Ostroski, Esq. as to the legality of
the Common Stock being registered pursuant hereto. The
Registrant undertakes that it will submit the Plan and all
amendments thereto to the Internal Revenue Service (the
"Service") in a timely manner and that it will make all
changes required by the Service to issue a determination
letter with respect to the Plan.
23.01 Consent of Independent Public Accountants -- Coopers &
Lybrand L.L.P.
23.02 Consent of Raymond B. Ostroski, Esq. (included in his
opinion filed as Exhibit 5.01).
24.01 Powers of Attorney (included on the signature page of this
registration statement).
</TABLE>
- -------------
* Incorporated by reference.
Exhibit 5.01
RCN CORPORATION
105 Carnegie Center
Princeton, NJ 08540
- - - - - - - - - -
(609) 734-3803
Facsimile (609) 734-3830
October 14, 1997
RCN Corporation
105 Carnegie Center, 3rd Floor
Princeton, New Jersey 08540
Gentlemen:
I am the Executive Vice President and General Counsel of RCN
Corporation, a Delaware corporation (the "Company"), and as such, I have acted
as counsel for the Company in connection with the proposed issuance by the
Company of up to 250,000 shares of Common Stock, par value of $1.00 per share
(the "Shares"), pursuant to the RCN Corporation 401(k) Plan (the "Plan") and
the registration of the Shares pursuant to the Registration Statement on Form
S-8 (together with all exhibits thereto, the "Registration Statement"), filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended and the rules and regulations promulgated
thereunder (the "Act").
This opinion is delivered in accordance with the requirements
of Item 601(b) of Regulation S-K under the Act.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate certificates of
public officials, certificates of officers or representatives of the Company
and others, as I have deemed necessary or appropriate for the purpose of
rendering this opinion.
I am a member of the Bar of the Commonwealth of Pennsylvania
and the opinion expressed herein is limited to the law of the Commonwealth of
Pennsylvania, the General Corporation Law of the State of Delaware and Federal
law of the United States of America.
Based upon and subject to the foregoing, I am of the opinion
that the Shares have been duly and validly authorized for issuance and, when
and to the extent issued pursuant to the Plan and upon receipt by the Company
of adequate consideration therefor, will be validly issued, fully paid and
nonassessable.
I consent to the filing of this opinion with the Commission as
Exhibit 5.01 to the Registration Statement. In giving such consent, I do not
thereby admit that I come within the category of persons whose consent is
required by the Act.
Very truly yours,
/s/ Raymond B. Ostroski
----------------------------
Raymond B. Ostroski, Esq.
Exhibit 23.01
We consent to the incorporation by reference in this
registration statement of RCN Corporation on Form S-8 of our report dated June
30, 1997, on our audits of the consolidated financial statements of RCN
Corporation as of December 31, 1996 and 1995, and for the years ended December
31, 1996, 1995, and 1994, which report is included in RCN Corporation's
Registration Statement on Form 10. We also consent to the reference to our
Firm under the caption "Experts".
Coopers & Lybrand L.L.P.
Philadelphia, Pennsylvania
October 14, 1997
