<PAGE>
As filed with the Securities and Exchange Commission on February 9, 2000
Registration Statement No. 333-92011
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
CYPRESS COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 58-2330270
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
Fifteen Piedmont Center, Suite 710
Atlanta, GA 30305
(404) 869-2500
(Address of Principal Executive Offices)
Employee Stock Purchase Plan
(Full Title of the Plan)
--------------------------
R. Stanley Allen
Chief Executive Officer
Cypress Communication, Inc.
Fifteen Piedmont Center, Suite 710
Atlanta, GA 30305
(404) 869-2500
(Name and Address of Agent For Service)
--------------------------------------
With a copy to:
Gilbert G. Menna, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
---------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Securities To Be Amount To Be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share (2) Aggregate Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001 900,000 $16.00 $14,400,000 $3,801.60
per share
Plan Interests (3) N/A (3) N/A (3) N/A (3) N/A (3)
====================================================================================================================================
</TABLE>
(1) This Registration Statement also relates to such indeterminate number of
additional shares of Cypress Communications, Inc. Common Stock as may be
required pursuant to the Employee Stock Purchase Plan in the event of a
stock dividend, reverse stock split, split-up, recapitalization, forfeiture
of stock under the plan or other similar event.
(2) This estimate is made pursuant to Rule 457(a) under the Securities Act of
1933, as amended, solely for the purposes of determining the amount of the
registration fee.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein. In accordance with Rule 457(h)(2), no separate fee
calculation is required with respect to the plan interests.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
Prospectuses is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Cypress Communications, Inc. (the "Registrant") hereby incorporates by
reference the following documents which have previously been filed with the
Securities and Exchange Commission:
(a) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A (Registration Statement No. 333-
92011), dated February 1, 2000, as filed with the Securities and
Exchange Commission on February 1, 2000 pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
hereto that indicates that all securities offered hereunder have been sold or
which deregisters all securities 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 documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
or in any subsequently filed document which also is incorporated by reference
herein modifies or supersedes such statement. Any 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.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
2
<PAGE>
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
In accordance with Section 145 of the General Corporation Law of the State
of Delaware ("DGCL"), Article VII of the Registrant's Second Amended and
Restated Certificate of Incorporation (the "Certificate") provides that no
director of the Registrant shall be personally liable to the Registrant 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 to the
Registrant or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174, or (iv) for any transaction from which the director derived an
improper personal benefit. In addition, the Certificate provides that if the
DGCL is amended to authorize the further elimination or limitation of the
personal liability of directors, then the liability of a director of the
Registrant shall be eliminated or limited to the fullest extent permitted by the
DGCL, as so amended. The Certificate further provides that any repeal or
modification of such Article VII by either of the stockholders or an amendment
to the DGCL, shall not adversely effect any right or protection existing at the
time of such repeal or modification with respect to any acts or omissions
ocurring before such repeal or modification of a person serving as a director at
the time of such repeal or modification.
Article V of the Registrant's Amended and Restated By-laws (the "By-laws")
provides for indemnification by the Registrant of its directors, officers and
certain non-officer employees under certain circumstances against expenses
(including attorneys fees, courts costs, travel expenses and additional
expenses), judgments, penalties, fines and amounts paid in settlement reasonably
incurred in connection with the defense or settlement of any threatened, pending
or completed legal proceeding in which any such person is involved by reason of
the fact that such person is or was a director, an officer or an employee of the
Registrant, or is acting in any capacity with other entities at the request of
the Registrant, if such person acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and with respect to criminal actions or proceedings, that such
person had no reasonable cause to believe his or her conduct was unlawful.
The Registrant has entered into indemnification agreements with each of its
directors and certain of its executive officers. These agreements provide that
the Registrant indemnify each of its directors and such officers to the
fullest extent permitted under law and the By-laws, and provide for the
advancement of expenses to each director and each such officer.
The Company carries directors' and officers' liability insurance covering
its directors and officers against certain liabilities.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
3
<PAGE>
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed as part of this
Registration Statement.
Exhibit
- -------
4.1 Second Amended and Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.7 to Amendment No. 2
to the Registrant's Registration Statement on Form S-1 (File No. 333-
92011), as filed with the Commission on February 4, 2000)
4.2 Amended and Restated By-laws (incorporated herein by reference to
Exhibit 3.8 to Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (File No. 333-92011), as filed with the
Commission on February 4, 2000)
4.3 Employee Stock Purchase Plan (incorporated herein by reference to
Exhibit 10.3 to Amendment No. 1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-92011), as filed with the
Commission on January 18, 2000)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto)
23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney (contained on the signature page to this
Registration Statement)
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 Securities Act; and
(ii) To reflect in the prospectus any acts or events arising
after the effective date of the 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 the
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 end 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
the effective Registration Statement.
(iii) 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;
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 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the 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.
4
<PAGE>
(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 Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities
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 Securities
Act and will be governed by the final adjudication of such issue.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
5
<PAGE>
SIGNATURES
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, on this 9th day of February, 2000.
Cypress Communications, Inc.
By: /s/ R. Stanley Allen
------------------------------------
R. Stanley Allen
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints each of R. Stanley Allen, Mark A. Graves and
Barry L. Boniface such person's true and lawful attorney-in-fact and agent with
full power of substitution and resubstitution, for such person and in such
person's 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 each said
attorney-in-fact and agent 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 such person might or could do
in person, hereby ratifying and confirming all that any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ R. Stanley Allen Chief Executive Officer and February 9, 2000
- -------------------------- Director (Principal Executive Officer)
R. Stanley Allen
/s/ Mark A. Graves President, Chief Operating Officer February 9, 2000
- -------------------------- and Secretary
Mark A. Graves
/s/ Ward C. Bourdeaux, Jr. Executive Vice President and February 9, 2000
- -------------------------- Director
Ward C. Bourdeaux, Jr.
/s/ Barry L. Boniface Chief Financial Officer February 9, 2000
- -------------------------- (Principal Financial and
Barry L. Boniface Accounting Officer)
</TABLE>
<PAGE>
/s/ William P. Egan Director February 9, 2000
- ----------------------------------
William P. Egan
/s/ Laurence Grafstein Director February 9, 2000
- ----------------------------------
Laurence Grafstein
/s/ Randall A. Hack Director February 9, 2000
- ----------------------------------
Randall A. Hack
/s/ John C. Halsted Director February 9, 2000
- ----------------------------------
John C. Halsted
/s/ Jeffrey H. Schutz Director February 9, 2000
- ----------------------------------
Jeffrey H. Schutz
/s/ P. Eric Yopes Director February 9, 2000
- ----------------------------------
P. Eric Yopes
Pursuant to the requirements of the Securities Act of 1933, the Members of
the Compensation Committee, as the Administrator of the Plan, have duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, on this 9th day of February, 2000.
Cypress Communications, Inc.
Employee Stock Purchase Plan
By: /s/ William P. Egan
------------------------------------------
William P. Egan
Member of Compensation Committee
By: /s/ John C. Halsted
-------------------------------------------
John C. Halsted
Member of Compensation Committee
By: /s/ Jeffrey H. Schutz
-------------------------------------------
Jeffrey H. Schutz
Member of Compensation Committee
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
4.1 Second Amended and Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.7 to Amendment No. 2
to the Registrant's Registration Statement on Form S-1 (File No. 333-
92011), as filed with the Commission on February 4, 2000)
4.2 Amended and Restated By-laws (incorporated herein by reference to
Exhibit 3.8 to Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (File No. 333-92011), as filed with the
Commission on February 4, 2000)
4.3 Employee Stock Purchase Plan (incorporated herein by reference to
Exhibit 10.3 to Amendment No. 1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-92011), as filed with the
Commission on January 18, 2000)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto)
23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney (contained on the signature page to this Registration
Statement)
</TABLE>
<PAGE>
EXHIBIT 5.1
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (617) 570-1000
TELEPHONE (617) 523-1231
February 8, 2000
Cypress Communications, Inc.
Fifteen Piedmont Center, Suite 710
Atlanta, Georgia 30305
Ladies and Gentlemen:
Re: Registration Statement on Form S-8
----------------------------------
This opinion is delivered in our capacity as counsel to Cypress
Communications, Inc. (the "Company") in connection with the preparation and
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Securities Act") of a Registration Statement on Form S-8
(the "Registration Statement") relating to 900,000 shares of Common Stock, par
value $.001 per share (the "Registered Shares") which the Company may issue
pursuant to the Employee Stock Purchase Plan (the "Plan").
As counsel for the Company, we have examined a copy of the Plan and the
Company's Second Amended and Restated Certificate of Incorporation and the
Amended and Restated By-laws, each as presently in effect, and such records,
certificates and other documents of the Company as we have deemed necessary or
appropriate for the purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the United States of America, The Commonwealth of Massachusetts and the
State of Delaware.
Based on the foregoing, we are of the opinion that upon the issuance and
delivery of the Registered Shares against payment therefor in accordance with
the terms of the Plan and any agreement thereunder, the Registered Shares will
be legally issued, fully paid and non-assessable shares of the Company's Common
Stock.
The foregoing assumes all requisite steps will be taken to comply with the
requirements of the Securities Act, applicable requirements of state laws
regulating the offer and sale of securities and applicable requirements of The
Nasdaq Stock Market, Inc.
We hereby consent to being named as counsel to the Company in the
Registration Statement and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
--------------------------------
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 dated February 9, 2000 of
our reports dated February 8, 2000 included in the Company's Registration
Statement on Form S-1 (File No. 333-92011), as amended, and to all references to
our Firm included in this registration statement.
/s/ Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
February 9, 2000
