As filed with the Securities and Exchange Commission
on September 30, 1998
Registration 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
NORTHEAST OPTIC NETWORK, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3056279
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
391 Totten Pond Road, Suite 401, Waltham, MA 02154
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated 1998 Stock Incentive Plan
(Full title of the plan)
Victor Colantonio, President
NorthEast Optic Network, Inc.
391 Totten Pond Road, Suite 401
Waltham, MA 02154
(Name and address of agent for service)
(781) 890-6868
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum maximum Amount of
Title of securities Amount to be offering price per aggregate offering registration
to be registered registered share price fee
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Common Stock,
$0.01 par value 2,436,105 $8.8125 $21,468,175.31 $6,333.11
==================================================================================================
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(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Common Stock on
the Nasdaq National Market on September 29, 1998 in accordance with Rules
457(c) and 457(h) of the Securities Act of 1933.
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<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's Amended and Restated 1998 Stock
Incentive Plan pursuant to Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
The following documents, which are filed with the Securities and
Exchange Commission (the "Commission"), are incorporated in this Registration
Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
annual report or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant,
$0.01 par value per share (the "Common Stock"), contained in the
Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed 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 which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents. Any statement
contained 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 also is or is deemed to be 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.
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<PAGE>
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The validity of the securities offered hereby will be passed upon for
the Registrant by Hale and Dorr LLP, Boston, Massachusetts. H&D Investments II,
a partnership comprised of partners of Hale and Dorr LLP, owns 15,845 shares of
Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Under Article Eighth of the Registrant's Second Amended and Restated
Certificate of Incorporation, each person who is a director or officer of the
Registrant shall be indemnified by the Registrant to the full extent permitted
by Section 145 of the General Corporation Law of Delaware ("Section 145").
Section 145 provides a detailed statutory framework covering
indemnification of directors and officers of liabilities and expenses arising
out of legal proceedings brought against them by reason of their status or
service as directors or officers. This section provides that a director or
officer of a corporation (i) shall be indemnified by the corporation for all
expenses of such legal proceedings when such director or officer is successful
on the merits, (ii) may be indemnified by the corporation for the expenses,
judgments, fines and amounts paid in settlement of such proceedings (other than
a derivative suit), even if such director or officer is not successful on the
merits, if such director or officer acted in good faith and in a manner such
director or officer reasonably believed to be in or not opposed to the best
interests of the corporation (and, in the case of a criminal proceeding, had no
reasonable cause to believe his conduct was unlawful), and (iii) may be
indemnified by the corporation for expenses of a derivative suit (a suit by a
shareholder alleging a breach by a director or officer of a duty owed to the
corporation), even if such director or officer is not successful on the merits,
if such director or officer acted in good faith and in a manner such director or
officer reasonably believed to be in or not opposed to the best interests of the
corporation. No indemnification may be made under clause (iii) above, however,
if the director or officer is adjudged liable for negligence or misconduct in
the performance of his duties to the corporation, unless a court determines
that, despite such adjudication and in view of all of the circumstances, such
director or officer is entitled to indemnification. The indemnification
described in clauses (ii) and (iii) above may be made only upon a determination
that indemnification is proper because the applicable standard of conduct has
been met. Such a determination may be made by a majority of disinterested
directors, independent legal counsel, a court of competent jurisdiction or a
majority vote of a quorum of outstanding stock entitled to vote for directors,
voting as a single class, which quorum consists of stockholders who are not
parties to the
3
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action in question. The Board of Directors may authorize advancing litigation
expenses to a director or officer upon receipt of an undertaking by such
director or officer to repay such expenses if it is ultimately determined that
such director or officer is not entitled to be indemnified for them.
As permitted by Section 145, the Registrant has purchased a general
liability insurance policy which covers certain liabilities of directors and
officers of the Registrant arising out of claims based on acts or omissions in
their capacity as directors or officers and for which they are not indemnified
by the Registrant.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits to this
Registration Statement is incorporated herein by reference.
Item 9. Undertakings
------------
1. The 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 facts 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; and
(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 (i) and (ii) do not apply if the Registration
Statement is on Form S-3 or Form S-8, 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
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15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under
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.
(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.
2. The 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 Section 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 in the initial bona fide offering thereof.
3. 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 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.
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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, in the City of Waltham, Massachusetts, on the 30th day of September,
1998.
NORTHEAST OPTIC NETWORK, INC.
By: /s/ Victor Colantonio
---------------------------
Victor Colantonio
President, Chairman
of the Company and Director
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POWER OF ATTORNEY
We, the undersigned officers and directors of NorthEast Optic Network,
Inc., hereby severally constitute Richard A. Crabtree, Victor Colantonio and
Alexander A. Bernhard, and each of them singly, our true and lawful attorneys
with full power to them, and each of them singly, to sign for us and in our
names in the capacities indicated below, the Registration Statement on Form S-8
filed herewith and any and all subsequent amendments to said Registration
Statement, and generally to do all such things in our names and behalf in our
capacities as officers and directors to enable NorthEast Optic Network, Inc. to
comply with all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by said attorneys,
or any of them, to said Registration Statement and any and all amendments
thereto.
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 date indicated.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman of the Board of September 30, 1998
/s/ Richard A. Crabtree Directors and Chief Executive
- ----------------------------- Officer
Richard A. Crabtree
President, Chairman of the September 30, 1998
/s/ Victor Colantonio Company and Director
- -----------------------------
Victor Colantonio
Chief Financial Officer and September 30, 1998
/s/ William F. Fennell Treasurer (Principal Financial
- ----------------------------- and Accounting Officer)
William F. Fennell
/s/ Katherine D. Courage Director September 30, 1998
- -----------------------------
Katherine D. Courage
/s/ John H. Forsgren Director September 30, 1998
- -----------------------------
John H. Forsgren
Director September 30, 1998
- -----------------------------
David Marsh
Director September 30, 1998
- -----------------------------
F. Michael McClain
/s/ Gary D. Simon Director September 30, 1998
- -----------------------------
Gary D. Simon
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Exhibit Index
Exhibit
Number Description
- ------ -----------
4.1 Second Amended and Restated Certificate of Incorporation
of the Registrant (1)
4.2 Amended and Restated By-Laws of the Registrant (2)
4.3 Specimen Certificate of Common Stock of the Registrant (3)
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
- -----------------------
(1) Incorporated herein by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (File No. 333-53441).
(2) Incorporated herein by reference to Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-53441).
(3) Incorporated herein by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-53441).
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Exhibit 5.1
HALE AND DORR LLP
COUNSELLORS AT LAW
60 STATE STREET, BOSTON, MASSACHUSETTS 02109
617-526-6000 o FAX 617-526-5000
September 30, 1998
NorthEast Optic Network, Inc.
391 Totten Pond Road, Suite 401
Waltham, MA 02154
Re: Amended and Restated 1998 Stock Incentive Plan
----------------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 2,436,105 shares (the "Shares") of Common Stock, $.01 par
value per share, of NorthEast Optic Network, Inc., a Delaware corporation (the
"Company"), issuable under the Company's Amended and Restated 1998 Stock
Incentive Plan (the "Plan").
We have examined the Certificate of Incorporation of the Company, the
By-laws of the Company (each as amended to date), and originals, or copies
certified in our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified, photostatic of facsimile copies, and the authenticity of the
originals of any such documents.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized for issuance under the Plan, and the Shares, when issued and
paid for in accordance with the terms of the Plan and at a price per share in
excess of the par value per share for such Shares, will be legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
Washington, DC Boston, MA London, UK*
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HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS
*BROBECK HALE AND DORR INTERNATIONAL (AN INDEPENDENT JOINT VENTURE LAW FIRM)
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the use of our report
(and to all references to our Firm) included in or made part of this
registration statement.
Boston, Massachusetts
September 30, 1998 /s/ ARTHUR ANDERSEN LLP
