<PAGE> 1
As filed with the Securities and Exchange Commission on June 10, 1999
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
----------------------
NEXTERA ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4700410
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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ONE CRANBERRY HILL
LEXINGTON, MASSACHUSETTS 02421
(781) 778-4400
(Address of principal executive offices, including zip code, and telephone
number)
THE NEXTERA/LEXECON LIMITED PURPOSE STOCK OPTION PLAN
OF NEXTERA ENTERPRISES, INC.
(Full title of the plans)
---------------------
<TABLE>
<S> <C>
MICHAEL P. MULDOWNEY Copies to:
CHIEF FINANCIAL OFFICER DAVID A. HAHN, ESQ.
NEXTERA ENTERPRISES, INC. LATHAM & WATKINS
ONE CRANBERRY HILL 701 "B" STREET, SUITE 2100
LEXINGTON, MASSACHUSETTS 02421 SAN DIEGO, CALIFORNIA 92101
(781) 778-4400 (619) 236-1234
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be Registered to be Offering Price Aggregate Offering Registration
Registered(1) Per Share Price Fee
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<S> <C> <C> <C> <C>
Class A Common Stock, $.001 par value 5,500,000 $(2) $51,412,941(2) $14,293
================================================================================================================================
</TABLE>
(1) A maximum of 5,500,000 shares of Class A Common Stock are reserved for
issuance under The Nextera/Lexecon Limited Purpose Stock Option Plan of
Nextera Enterprises, Inc. (the "Limited Purpose Plan"). Of these 5,500,000
shares of Class A Common Stock, no shares have been issued upon exercise of
options granted under the Limited Purpose Plan.
(2) This estimate is made pursuant to Rule 457(h) solely for purposes of
calculating the registration fee, and is determined according to the
following offering price information: of the 5,500,000 shares of Class A
Common Stock reserved for issuance under the Limited Purpose Plan being
registered hereunder, (i) 2,733,441 shares of Class A Common Stock are
subject to outstanding options with an exercise price of $10.00 per share,
(ii) 445,245 shares of Class A Common Stock are subject to outstanding
options with an exercise price of $14.00 per share, and (iii) of the
2,321,314 shares of Class A Common Stock reserved for issuance under the
Limited Purpose Plan being registered hereunder, all of such shares of Class
A Common Stock are reserved for issuance upon exercise of options to be
granted in the future. Pursuant to Rule 457(h), for all shares of Class A
Common Stock being registered hereunder with an exercise price which cannot
be presently determined (2,321,314 shares of Class A Common Stock under the
Limited Purpose Plan), the Proposed Maximum Offering Price Per Share is
$7.6875 per share of Class A Common Stock, which is based average of the
average of the high and low sales prices for the Class A Common Stock as
reported on the Nasdaq National Market on June 7, 1999.
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PART I
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.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) the Registrant's Prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Securities
Act"), filed on May 18, 1999;
(b) the description of the Registrant's Class A Common Stock
contained in the Registrant's Registration Statement on Form 8-A filed
on May 7, 1999, pursuant to Section 12(g) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date this Registration
Statement is filed with the Commission and prior to the filing of a
post-effective amendment which indicates that all securities offered 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
of it from the respective dates of 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 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.
2
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Latham & Watkins attorneys own an aggregate of 7,300 shares of Class
A Common Stock. Latham & Watkins provides legal services to the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware (the "DGCL")
permits a Delaware corporation to indemnify officers, directors, employees and
agents for actions taken 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, which they had no reasonable cause to believe
was unlawful. The DGCL also provides that a corporation may advance the expenses
of defense (upon receipt of a written undertaking to reimburse the corporation
if it is ultimately determined that such individual is not entitled to
indemnification) and must reimburse a successful defendant for expenses,
including attorneys' fees, actually and reasonably incurred. The DGCL further
provides that indemnification may not be made for any claim, issue or matter as
to which a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation, except
only to the extent a court determines that the person is entitled to indemnify
for such expenses that such court deems proper. The DGCL also permits a
corporation to purchase and maintain liability insurance for its directors and
officers.
The Registrant's Amended and Restated Certificate of Incorporation and
Bylaws provide that the Registrant shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Registrant) by
reason of the fact that he/she is or was a director, officer, employee or agent
of the Registrant, or is or was serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him/her in connection with such action or suit or proceeding if
he/she acted in good faith and in a manner he/she reasonably believed to be in
or not opposed to the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his/her
conduct was unlawful. Such limitation of liability does not affect the
availability of equitable remedies such as injunctive relief or rescission. The
Registrant has entered into indemnification agreements with its officers and
directors containing provisions which may require the Registrant, among other
things, to indemnify the officers and directors against certain liabilities that
may arise by reason of their status or service as directors or officers (other
than liabilities arising from willful misconduct of a culpable nature), and to
advance their expenses incurred as a result of any proceeding against them as to
which they could be indemnified. The Registrant maintains insurance on behalf of
its directors and officers, insuring them against liabilities that they may
incur in such capacities or arising out of such status.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
<PAGE> 4
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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 of 1933, as amended (the
"Securities 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 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 this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above 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
Exchange Act that are incorporated by reference in this 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.
4
<PAGE> 5
(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 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.
(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 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.
5
<PAGE> 6
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, in the City of Lexington, State of Massachusetts, on this 10th day
of June 1999.
NEXTERA ENTERPRISES, INC.
By: /s/ GRESHAM T. BREBACH, JR.
------------------------------------------
GRESHAM T. BREBACH, JR.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Gresham T. Brebach, Jr. his true and
lawful attorney-in-fact, acting alone, 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
and any registration statement filed pursuant to Rule 462(b) under the
Securities Act 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, hereby ratifying and confirming all that
said attorney-in-fact or his substitute, 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ GRESHAM T. BREBACH, JR. President, Chief Executive Officer and June 10, 1999
- -------------------------------------------
Gresham T. Brebach, Jr. Chairman of the Board of Directors
(Principal Executive Officer)
/s/ MICHAEL P. MULDOWNEY Chief Financial Officer (Principal June 10, 1999
- -------------------------------------------
Michael P. Muldowney Financial and Accounting Officer)
/s/ RONALD K. BOHLIN Chief Operating Officer and Director June 10, 1999
- -------------------------------------------
Ronald K. Bohlin
/s/ ROGER BROSSY Director June 10, 1999
- -------------------------------------------
Roger Brossy
/s/ RALPH FINERMAN Director June 10, 1999
- -------------------------------------------
Ralph Finerman
/s / STEVEN B. FINK Director June 10, 1999
- -------------------------------------------
Steven B. Fink
/s/ STANLEY E. MARON Director June 10, 1999
- -------------------------------------------
Stanley E. Maron
/s / RICHARD V. SANDLER Director June 10, 1999
- -------------------------------------------
Richard V. Sandler
/s/ MICHAEL D. ROSE Director June 10, 1999
- -------------------------------------------
Michael D. Rose
</TABLE>
<PAGE> 7
EXHIBIT INDEX
EXHIBIT
4.1 The Nextera/Lexecon Limited Purpose Stock Option Plan of Nextera
Enterprises, Inc. (incorporated by reference to Exhibit 10.2 to
Amendment No. 6 to the Company's Registration Statement on Form S-1 as
filed with the Commission on May 6, 1999 (File No. 333-63789)
5.1 Opinion of Latham & Watkins.
23.1.1 Consent of Ernst & Young LLP, Independent Auditors.
23.1.2 Consent of Ernst & Young LLP, Independent Auditors.
23.1.3 Consent of BDO Seidman, LLP, Independent Certified Public Accountants.
23.1.4 Consent of Ernst & Young LLP, Independent Auditors.
23.1.5 Consent of Harte Carucci & Driscoll, P.C., Independent Auditors.
23.1.6 Consent of Farkouh, Furman & Faccio, Independent Auditors.
23.1.7 Consent of Grant Thornton
23.1.8 Consent of Ernst & Young LLP, Independent Auditors.
23.1.9 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page hereto).
<PAGE> 1
Exhibit 5.1
[LETTERHEAD OF LATHAM & WATKINS]
June 10, 1999
Nextera Enterprises, Inc.
One Cranberry Hill
Lexington, Massachusetts 02421
Re: Form S-8 Registration Statement
5,500,000 Shares of Class A Common Stock
Ladies and Gentlemen:
In connection with the registration by Nextera Enterprises,
Inc., a Delaware corporation (the "Registrant"), of 5,500,000 shares of Class A
common stock, par value $0.001 per share (the "Shares"), of the Registrant to be
issued pursuant to The Nextera/Lexecon Limited Purpose Stock Option Plan of
Nextera Enterprises, Inc. (the "Plan") under the Securities Act of 1933, as
amended (the "Act"), on a Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on May 18, 1999 (as amended from time to
time, the "Registration Statement"), you have requested our opinion with respect
to the matters set forth below.
In our capacity as your counsel in connection with such registration, we
are familiar with the proceedings taken and proposed to be taken by the
Registrant in connection with the authorization, issuance and sale of the
Shares. In addition, we have made such legal and factual examinations and
inquiries, including an examination of originals or copies certified or
otherwise identified to our satisfaction of such documents, corporate records
and instruments, as we have deemed necessary or appropriate for purposes of this
opinion.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
<PAGE> 2
Nextera Enterprises, Inc.
June 10, 1999
Page 2
We are opining herein as to the effect on the subject
transaction only of the General Corporation Law of the State of Delaware, and we
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or any other laws, or as to any
matters of municipal law or the laws of any other local agencies within the
state.
Subject to the foregoing, it is our opinion that as of the date
hereof the Shares have been duly authorized, and, upon the issuance of the
Shares in accordance with the terms set forth in the Plan, the Shares will be
validly issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
LATHAM & WATKINS
<PAGE> 1
Exhibit 23.1.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to The Nextera/Lexecon Limited Purpose Stock
Option Plan of Nextera Enterprises, Inc. of our report dated February 19, 1999,
with respect to the consolidated financial statements of Nextera Enterprises,
Inc. (the "Registrant") included in the Registrant's Prospectus filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended, in connection with
the Registrant's Registration Statement on Form S-1 (File No. 333-63789).
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
June 9, 1999
<PAGE> 1
Exhibit 23.1.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to The Nextera/Lexecon Limited Purpose Stock
Option Plan of Nextera Enterprises, Inc. of our report dated April 30, 1998,
relating to the consolidated financial statements of Symmetrix, Inc. included in
the Prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933,
as amended, in connection with Nextera Enterprises, Inc. Form S-1 (File No.
333-63789).
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
June 9, 1999
<PAGE> 1
Exhibit 23.1.3
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated July 19, 1996, relating to the May 31,
1996 consolidated financial statements of Symmetrix, Inc. included in the
Prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as
amended, in connection with the Registration Statement on Form S-1 (File No.
333-63789) of Nextera Enterprises, Inc..
/s/ B.D.O. SEIDMAN, LLP
Boston, Massachusetts
June 9, 1999
<PAGE> 1
Exhibit 23.1.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to The Nextera/Lexecon Limited Purpose Stock
Option Plan of Nextera Enterprises, Inc. of our report dated August 31, 1998,
relating to the financial statements of SiGMA Consulting, LLC, included in the
Prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as
amended, in connection with Nextera Enterprises, Inc. Form S-1 (File No.
333-63789).
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
June 9, 1999
<PAGE> 1
Exhibit 23.1.5
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated February 19, 1998, except for Note 8
which is April 4, 1998, with respect to the financial statements of The Planning
Technologies Group, Inc., included in the Prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended, in connection with the
Registration Statement on Form S-1 (File No. 333-63789) of Nextera Enterprises,
Inc.
/s/ HARTE CARUCCI & DRISCOLL, P.C.
Woburn, Massachusetts
June 9, 1999
<PAGE> 1
Exhibit 23.1.6
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated December 29, 1998, with respect to the
financial statements of Sibson & Company, L.P. and Subsidiaries, included in the
Prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as
amended, in connection with the Registration Statement on Form S-1 (File No.
333-63789) of Nextera Enterprises, Inc.
/s/ FARKOUH, FURMAN & FACCIO
CERTIFIED PUBLIC ACCOUNTANTS
New York, New York
June 9, 1999
<PAGE> 1
Exhibit 23.1.7
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated September 1, 1998, with respect to the
financial statements of Sibson Canada, Inc. included in the Prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended, in
connection with the Registration Statement on Form S-1 (File No. 333-63789) of
Nextera Enterprises, Inc.
/s/ GRANT THORNTON
Chartered Accountants
Toronto, Canada
June 9, 1999
<PAGE> 1
Exhibit 23.1.8
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to The Nextera/Lexecon Limited Purpose Stock
Option Plan of Nextera Enterprises, Inc. of our report dated February 2, 1999,
relating to the financial statements of Lexecon Inc., included in the Prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended, in
connection with Nextera Enterprises, Inc. Form S-1 (File No. 333-63789).
/s/ ERNST & YOUNG
Chicago, Illinois
June 9, 1999
<PAGE> 1
Exhibit 23.1.9
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to The Nextera/Lexecon Limited Purpose Stock
Option Plan of Nextera Enterprises, Inc. of our report dated September 25, 1998,
with respect to the 1997 financial statements of Pyramid Imaging, Inc., included
in the Prospectus filed pursuant to Rule 424(b) under the Securities Act of
1933, as amended, in connection with Nextera Enterprises, Inc. Form S-1 (File
No. 333-63789).
/s/ ERNST & YOUNG
San Francisco, California
June 9, 1999
