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As filed with the Securities and Exchange Commission on November 17, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEXTERA ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 95-4700410
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
ONE CRANBERRY HILL
LEXINGTON, MASSACHUSETTS 02421
(781) 778-4400
(Address of principal executive offices, including zip code,
and telephone number)
THE AMENDED AND RESTATED 1998 EQUITY PARTICIPATION PLAN OF
NEXTERA ENTERPRISES, INC.
THE NEXTERA ENTERPRISES, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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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)
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be Registered to be Offering Price Aggregate Offering Registration
Registered(1)(2) Per Share(3) Price(3) Fee
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<S> <C> <C> <C> <C>
The Amended and Restated 1998
Equity Participation Plan of 5,000,000 $1.47 to $10.38 $12,471,933.52 $3,293
Nextera Enterprises, Inc.
Class A Common Stock, $0.001 par
value
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The Nextera Enterprises, Inc.
Employee Stock Purchase Plan 875,000 $1.22 $ 1,067,500.00 $ 282
Class A Common Stock, $0.001 par
value
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</TABLE>
(1) This Registration Statement on Form S-8 covers 875,000 shares of Class A
Common Stock available for issuance under the Nextera Enterprises, Inc.
Employee Stock Purchase Plan (the "Purchase Plan") and 5,000,000
additional shares of Class A Common Stock available for issuance under
the Amended and Restated 1998 Equity Participation Plan of Nextera
Enterprises, Inc. (the "1998 Plan"), pursuant to an amendment and
restatement of the 1998 Plan approved by the stockholders of the
registrant on June 15, 2000. The 1998 Plan authorizes the issuance of a
maximum of 12,000,000 shares of Class A Common Stock. However, the offer
and sale of 6,993,537 shares of Class A Common Stock under the 1998 Plan,
which have been or may be issued upon exercise of options under the 1998
Plan, have previously been registered pursuant to Form S-8 Registration
Statement No. 333-78825. The remaining 6,463 shares of Class A Common
Stock issued upon exercise of options under the 1998 Plan were not
registered.
(2) Pursuant to Rule 416(a), this Registration Statement shall also cover any
additional shares of the registrant's Class A Common Stock that become
issuable under the Purchase Plan or the 1998 Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without receipt of consideration that increases the number of
the registrant's outstanding shares of Class A Common Stock.
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(3) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the weighted average exercise price of
$2.50 for 5,000,000 shares issuable pursuant to outstanding stock options
previously granted under the 1998 Plan and (b) the average of the high
and low sales prices of the registrant's common stock on November 15,
2000, as reported on the Nasdaq National Market, for shares yet to be
purchased under the Purchase Plan.
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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.
The following documents previously filed with the Securities and Exchange
Commission (the "Commission") by the Registrant are hereby incorporated by
reference in this Registration Statement:
(a) the Annual Report on Form 10-K for the fiscal year ended December
31, 1999 filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on March 30, 2000 and Amendment No.
1 thereto filed on May 1, 2000 and Amendment No. 2 thereto filed
on May 2, 2000;
(b) the Quarterly Report on Form 10-Q filed pursuant to the Exchange
Act on May 15, 2000;
(c) the Quarterly Report on Form 10-Q filed pursuant to the Exchange
Act on August 14, 2000;
(d) the Quarterly Report on Form 10-Q filed pursuant to the Exchange
Act on November 14, 2000;
(e) 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 Exchange Act; and
(f) all other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the effective date of the Annual Report on Form
10-K.
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
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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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Officers and directors of the Registrant are covered by certain
provisions of the Delaware General Corporation Law ("DGCL"), the charter, the
bylaws, indemnification agreements and insurance policies which serve to limit,
and, in certain instances, to indemnify them against, certain liabilities which
they may incur in such capacities. These various provisions are described below.
Elimination of Liability in Certain Circumstances. In June 1986, Delaware
enacted legislation which authorizes corporations to limit or eliminate the
personal liability of directors to corporations and their stockholders for
monetary damages for breach of directors' fiduciary duty of care. This duty of
care requires that, when acting on behalf of the corporation, directors must
exercise an informed business judgment based on all significant information
reasonably available to them. Absent the limitations now authorized by such
legislation, directors are accountable to corporations and their stockholders
for monetary damages for conduct constituting negligence or gross negligence in
the exercise of their duty of care. Although the statute does not change
directors' duty of care, it enables corporations to limit available relief to
equitable remedies such as injunction or rescission. The charter limits the
liability of directors to the Registrant or its stockholders (in their capacity
as directors but not in their capacity as officers) to the fullest extent
permitted by such legislation. Specifically, the directors of the Registrant
will not be personally liable for monetary damages for breach of a director's
fiduciary duty as director, except for liability: (1) for any breach of the
director's duty of loyalty to the Registrant or its stockholders; (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (3) for unlawful payments of dividends or unlawful
share repurchases or redemptions as provided in Section 174 of the DGCL; or (4)
for any transaction from which the director derived an improper personal
benefit.
Indemnification and Insurance. As a Delaware corporation, the Registrant
has the power, under specified circumstances generally requiring the director or
officer to act in good faith and in a manner he reasonably believes to be in or
not opposed to the Registrant's best interests, to indemnify its directors and
officers in connection with actions, suits or proceedings brought against them
by a third party or in the name of the Registrant, by reason of the fact that
they were or are such directors or officers, against expenses, judgments, fines
and amounts paid in settlement in connection with any such action, suit or
proceeding. The bylaws generally provide for mandatory indemnification of the
Registrant's directors and officers to the full extent provided by Delaware
corporate law. In addition, the Registrant has entered into indemnification
agreements with its directors and officers which
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generally provide for mandatory indemnification under circumstances for which
indemnification would otherwise be discretionary under Delaware law. 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.
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
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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.
(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.
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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, in the City of Los Angeles, State of California, on this 16th day of
November 2000.
NEXTERA ENTERPRISES, INC.
By: /s/ DAVID SCHNEIDER
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DAVID SCHNEIDER
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints David Schneider and Stanley E. Maron and
each of them, as his true and lawful attorneys-in-fact and agents, 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, exhibits thereto and other documents in connection
therewith) to this Registration Statement and any subsequent registration
statement filed by the registrant pursuant to Rule 462(b) of the Securities Act
of 1933, as amended, which relates 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
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agents, or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act or 1933, 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
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<S> <C> <C>
/s/ David Schneider President and Chief Executive November 16, 2000
------------------------------------ Officer (Principal Executive
David Schneider Officer)
/s/ Michael P. Muldowney Chief Financial Officer (Principal November 16, 2000
----------------------------------- Financial and Accounting Officer)
Michael P. Muldowney
/s/ Steven B. Fink Chairman of the Board of Directors November 16, 2000
-----------------------------------
Steven B. Fink
/s/ Roger Brossy Director November 16, 2000
-----------------------------------
Roger Brossy
/s/ Gregory J. Clark Director November 16, 2000
-----------------------------------
Gregory J. Clark
/s/ Ralph Finerman Director November 16, 2000
-----------------------------------
Ralph Finerman
/s/ Keith D. Grinstein Director November 16, 2000
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Keith D. Grinstein
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Stanley E. Maron Director and Secretary November 16, 2000
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Stanley E. Maron
/s/ Vincent C. Perro Director November 16, 2000
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Vincent C. Perro
/s/ Michael D. Rose Director November 16, 2000
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Michael D. Rose
/s/ Richard V. Sandler Director November 16, 2000
------------------------------------
Richard V. Sandler
/s/ Richard L. Sandor Director November 16, 2000
------------------------------------
Richard L. Sandor
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EXHIBIT INDEX
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EXHIBIT
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<S> <C>
3.1* Second Amended and Restated Certificate of Incorporation of Nextera
Enterprises, Inc.
4.1* The Amended and Restated 1998 Equity Participation Plan of Nextera
Enterprises, Inc.
5.1* Opinion of Latham & Watkins regarding the 1998 Plan.
5.2* Opinion of Latham & Watkins regarding the Purchase Plan.
23.1* Consent of Ernst & Young LLP, Independent Auditors.
23.2* Consent of Latham & Watkins (included in Exhibit 5.1 hereto).
23.3* Consent of Latham & Watkins (included in Exhibit 5.2 hereto).
24.1* Power of Attorney (included on signature page hereto).
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* Filed herewith
