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As filed with the Securities and Exchange Commission on July 14, 2000
Registration Statement No. 333-
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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)
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<S> <C>
Delaware 58-2330270
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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Fifteen Piedmont Center, Suite 100
Atlanta, GA 30305
(404) 869-2500
(Address of Principal Executive Offices)
SiteConnect, Inc. Incentive Stock Option Plan and Nonstatutory Stock Option Plan
----------------------------------
W. Frank Blount
Chief Executive Officer
Cypress Communications, Inc.
Fifteen Piedmont Center, Suite 100
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
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CALCULATION OF REGISTRATION FEE
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====================================================================================================================================
Title of Securities To Be Amount To Be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.001 18,283 (2) $6.1875 (3) $113,126.06 $29.87
per share
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(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 SiteConnect, Inc. Incentive Stock Option Plan
and Nonstatutory Stock Option 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 Registration Statement relates to 18,283 shares of Cypress
Communications, Inc. Common Stock that may be issued upon the exercise
of options issued under the SiteConnect, Inc. Incentive Stock Option
Plan and Nonstatutory Stock Option Plan, which options were assumed by
Cypress Communications, Inc. in connection with a Stock Purchase
Agreement, dated April 30, 2000, by and among Cypress Communications,
Inc., SiteConnect, Inc. and the holders of capital stock of SiteConnect,
Inc.
(3) Determined pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act").
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
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* 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.
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Cypress Communications, Inc. (the "Registrant") hereby incorporates by
reference the following documents which have previously been filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report filed on Form 10-K for the fiscal year
ended December 31, 1999, filed with the Commission on March 30, 2000
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000, filed with the Commission on May 15, 2000,
pursuant to the Exchange Act.
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A, dated February 1, 2000, as filed
with the Securities and Exchange Commission on February 1, 2000
pursuant to Section 12(g) of the Exchange Act.
In addition, all documents subsequently filed with the 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.
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Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
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.
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Item 8. Exhibits.
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The following is a complete list of exhibits filed as part of this
Registration Statement.
Exhibit
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4.1 Second Amended and Restated Certificate of Incorporation (incorporated
herein by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-8 (File No. 333-30504), as filed with the
Commission on February 16, 2000)
4.2 Amended and Restated By-laws (incorporated herein by reference to
Exhibit 4.2 to the Registrant's Registration Statement on Form S-8
(File No. 333-30504), as filed with the Commission on February 16,
2000)
4.3 SiteConnect, Inc. Incentive Stock Option Plan and Nonstatutory Stock
Option Plan
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;
(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.
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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.
(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]
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 14th day of July, 2000.
Cypress Communications, Inc.
By: /s/ W. Frank Blount
----------------------------------
W. Frank Blount
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints each of W. Frank Blount, R. Stanley Allen 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 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, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ W. Frank Blount Chairman of the Board of Directors and Chief July 14, 2000
--------------------------------------- Executive Officer (Principal Executive Officer)
W. Frank Blount
/s/ R. Stanley Allen Vice Chairman and Director July 14, 2000
----------------------------------------
R. Stanley Allen
/s/ Ward C. Bourdeaux, Jr. Executive Vice President and July 14, 2000
------------------------------------ Director
Ward C. Bourdeaux, Jr.
/s/ Barry L. Boniface Chief Financial Officer July 14, 2000
--------------------------------------- (Principal Financial and
Barry L. Boniface Accounting Officer)
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William P. Egan Director July 14, 2000
---------------------------------------
William P. Egan
/s/ Laurence S. Grafstein Director July 14, 2000
--------------------------------------
Laurence S. Grafstein
/s/ Randall A. Hack Director July 14, 2000
---------------------------------------
Randall A. Hack
/s/ John C. Halsted Director July 14, 2000
----------------------------------------
John C. Halsted
/s/ Jeffrey H. Schutz Director July 14, 2000
----------------------------------------
Jeffrey H. Schutz
/s/ P. Eric Yopes Director July 14, 2000
-----------------------------------------
P. Eric Yopes
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
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4.1 Second Amended and Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-8 (File No. 333-
30504), as filed with the Commission on February 16, 2000)
4.2 Amended and Restated By-laws (incorporated herein by reference
to Exhibit 4.2 to the Registrant's Registration Statement on
Form S-8 (File No. 333-30504), as filed with the Commission on
February 16, 2000)
4.3 SiteConnect, Inc. Incentive Stock Option Plan and Nonstatutory
Stock Option Plan
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)
