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As Filed with the Securities and Exchange Commission on July 3, 2000
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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RCN CORPORATION
(Exact Name of Registrant as Specified in Charter)
DELAWARE 22-3498533
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) Number)
105 Carnegie Center
Princeton, New Jersey 08540
(609) 734-3700
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
RCN CORPORATION
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
John J. Jones, Esq.
Executive Vice President, General Counsel
and Corporate Secretary
RCN Corporation
105 Carnegie Center
Princeton, New Jersey 08540
(Name and address of agent for service)
(609) 734-3700
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed maximum
Title of Securities to be Amount to be maximum offering aggregate offering Amount of
Registered registered Price per Share (1) price (1) registration fee
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<S> <C> <C> <C> <C>
Common Stock 1,000,000 $ 24.94 $24,940,000 $6,584
par value $1.00
per share
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</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 (the "Act") on the
basis of the last reported price of the registrant's Common Stock on
June 30, 2000.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been heretofore filed with the
Securities and Exchange Commission (the "Commission") by RCN Corporation (the
"Registrant" or "Company") are incorporated by reference in this Registration
Statement.
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999 (the "Form 10-K") as filed with the Commission.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since
the end of the fiscal year covered by the Annual Report referred to in (a)
above.
(c) The description of the Company's Common Stock contained in
the Company's Current Report on Form 10, including any amendment thereto or
report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
pursuant to this Registration Statement have been sold or which 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.
Item 4. Description of Securities.
The Common Stock, which is the class of securities offered
pursuant to this Registration Statement, is registered under the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock registered hereunder has been
passed upon for the Company by John J. Jones, Esq., 105 Carnegie Center,
Princeton, New Jersey. Mr. Jones is General Counsel, Executive Vice President
and Corporate Secretary of the Company, and Mr. Jones owns 7,812 shares of
Common Stock and options to purchase 144,851 shares of Common Stock. The
aforementioned options to purchase include vested options to purchase 26,668
shares of Common Stock and unvested options to purchase 118,183 shares of Common
Stock.
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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.
Exhibit No. Description
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4 RCN Corporation 2000 Employee Stock Purchase Plan (the
"Plan") (incorporated by reference to Appendix A to the
Company's definitive proxy statement filed with the
Commission on April 20, 2000).
5 Opinion of John J. Jones, Esquire
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23.1 Consent of Independent Accountants.
23.2 Consent of John J. Jones, Esquire (included in Exhibit 5)
24 Power of Attorney (See Signature Page at page 7)
Item 9. Undertakings
The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are
being made pursuant to this Registration Statement, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(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 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 is registered) and any deviation from the low or high end of
the estimated maximum 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 "Calculation of Registration Fee" table in
the effective registration statement;
(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 (i) and (ii) above do not apply if the
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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 by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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(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.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of the Plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 Act and will
be governed by the final adjudication of such issue.
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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 on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Princeton, New Jersey, on June 30, 2000.
RCN CORPORATION
By: /s/ Timothy J. Stoklosa
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Timothy J. Stoklosa, Executive Vice
President and Chief Financial Officer,
principal financial officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints David C. McCourt, Timothy J. Stoklosa and
John J. Jones, and each or any of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, 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 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 and necessary to be done 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, his or her substitutes or substitute,
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 dates indicated.
Date: June 30, 2000 /s/ David C. McCourt
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David C. McCourt, Chairman and
Chief Executive Officer, principal
executive officer
Date: June 30, 2000 /s/ Michael A. Adams
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Michael A. Adams, President and Chief
Operating Officer, principal operating
officer
Date: June 30, 2000 /s/ Timothy J. Stoklosa
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Timothy J. Stoklosa, Executive Vice
President and Chief Financial Officer,
principal financial officer
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<PAGE>
Date: June 30, 2000 /s/ Ralph S. Hromisin
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Ralph S. Hromisin, Senior Vice President and
Chief Accounting Officer, principal
accounting officer
Date: June 30, 2000 /s/ James Q. Crowe
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James Q. Crowe, Director
Date: June 30, 2000 /s/ Alfred Fasola
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Alfred Fasola, Director
Date: June 30, 2000 /s/ Stuart E. Graham
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Stuart E. Graham, Director
Date: June 30, 2000 /s/ Edward S. Harris
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Edward S. Harris, Director
Date: June 30, 2000 /s/ Richard R. Jaros
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Richard R. Jaros, Director
Date: June 30, 2000 /s/ Michael J. Levitt
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Michael J. Levitt, Director
Date: June 30, 2000 /s/ Thomas May
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Thomas May, Director
Date: June 30, 2000 /s/ Thomas P. O'Neill, III
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Thomas P. O'Neill, III, Director
Date: June 30, 2000 /s/ Eugene Roth
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Eugene Roth, Director
Date: June 30, 2000 /s/ William D. Savoy
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William D. Savoy, Director
Date: June 30, 2000 /s/ Walter Scott, Jr.
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Walter Scott, Jr., Director
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Date: June 30, 2000 /s/ Michael B. Yanney
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Michael B. Yanney, Director
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