<PAGE>
As filed with the Securities and Exchange Commission on May 6, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
_______________________
NORTHPOINT COMMUNICATIONS GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 222 Sutter Street 52-214-7716
San Francisco, California 94108
(State of Incorporation) (Address of Principal (I.R.S. Employer
Executive Offices) Identification No.)
_______________________
NorthPoint Communications Group, Inc. Employee Stock Purchase Plan
(Full Title of the Plan)
_______________________
Michael W. Malaga
Chairman of the Board and Chief Executive Officer
NorthPoint Communications Group, Inc.
222 Sutter Street
San Francisco, California 94108
(415) 403-4003
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Michael W. Hall
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
(650) 328-4600
_______________________
Calculation of Registration Fee
<TABLE>
<CAPTION>
==================================================================================================================
Proposed Proposed
Number of Maximum Maximum Amount of
Shares to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share(2) Offering Price(2) Fee(2)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value............... 4,000,000 $0.40 $1,600,000 $569.80
Interests in NorthPoint Communications
Group, Inc. Employee Stock Purchase Plan.... (3) -- -- --
==================================================================================================================
</TABLE>
(1) This registration statement shall also cover any additional shares of
common stock which become issuable under the NorthPoint Communications
Group, Inc. Employee Stock Purchase Plan by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the outstanding shares of common stock of NorthPoint Communications Group,
Inc.
(2) Estimated for the purpose of calculating the registration fee pursuant to
Rule 457(h) under the Securities Act of 1933, as amended (the "Securities
Act"), on the basis of the book value per share of common stock ($0.40) of
NorthPoint Communications Group, Inc. on February 28, 1999.
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests to
be offered and sold pursuant to the NorthPoint Communications Group, Inc.
Employee Stock Purchase Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents which we filed with the Commission are incorporated by
reference into this registration statement:
(a) The description of Common Stock contained in our registration
statement on Form 8-A (File No. 0-29828) filed with the Commission on April 1,
1999 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any subsequent amendment or report filed for
the purpose of amending such description.
(b) In addition, all documents which we file pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this registration
statement and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this registration
statement 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 in this
registration statement, or in any other subsequently filed document which also
is or is deemed to be incorporated by reference in this registration
statement, 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.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the issuance of the shares of Common Stock described herein
has been passed upon for us by Latham & Watkins, San Francisco, California.
Certain Latham & Watkins attorneys hold shares of our Common Stock.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article VII of our Third Amended and Restated Certificate of Incorporation
provides that to the fullest extent permitted by the Delaware General
Corporation Law ("Delaware Law"), as it now exists or
2
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as it may be amended in the future, a director of our company shall not be
personally liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director. Under current Delaware Law, liability of a
director may not be limited (i) for any breach of the director's duty of loyalty
to our company or our stockholders, (ii) for acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law, (iii) in
respect of certain unlawful dividend payments or stock redemptions or
repurchases, and (iv) for any transaction from which the director derives an
improper personal benefit. The effect of the provision of our Third Amended and
Restated Certificate of Incorporation is to eliminate our rights and the rights
of our stockholders (through stockholders' derivative suits on behalf of us) to
recover monetary damages against a director for breach of the fiduciary duty of
care as a director (including breaches resulting from negligent or grossly
negligent behavior) except in the situations described in clauses (i) through
(iv) above. This provision does not limit or eliminate our rights or the rights
of any stockholder to seek nonmonetary relief such as an injunction or
rescission in the event of a breach of a director's duty of care. In addition,
our Third Amended and Restated Certificate of Incorporation provides that we
shall indemnify to the fullest extent permitted by law any person made or
threatened to be made a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of the fact that he or she is
or was a director or officer of our company or any predecessor of our company,
or serves or served at any other enterprise as a director or officer at our
request.
We have also entered into indemnification agreements with each of our
directors and executive officers, which also provide for indemnification against
certain liabilities, including certain liabilities under the Securities Act. We
currently maintain directors' and officers' liability insurance. The policy
insures directors and officers for liabilities incurred in connection with or on
behalf of us, except for losses incurred on account of certain specified
liabilities, including losses from matters which may be deemed uninsurable under
the law pursuant to which this policy shall be construed.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following are the exhibits required by Item 601 of Regulation S-K:
Exhibit
Number
- -------
5.1 Opinion of Latham & Watkins.
10.1* NorthPoint Communications Group, Inc. Employee Stock Purchase Plan.
10.2 First Amendment to the NorthPoint Communications Group, Inc. Employee
Stock Purchase Plan.
23.1 Consent of Latham & Watkins (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included on page 5 of this registration statement).
________________________
*Incorporated by reference to Exhibit 10.1 of Amendment No. 1 to the
registrant's registration statement on Form S-1 (File No. 333-73065) filed on
March 31, 1999.
3
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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 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 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 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 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.
(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 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 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
4
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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
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, NorthPoint Communications Group, Inc., a Delaware corporation,
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 San Francisco, State of California, on this 5th day
of May, 1999.
NorthPoint Communications Group, Inc.
By: /s/ Michael W. Malaga
-------------------------------------
Michael W. Malaga
Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Michael W. Malaga and Henry P.
Huff, with full power of substitution and resubstitutions and full power to act
without the other, his or her true and lawful attorneys-in-fact and agents to
act for him or her in his or her name, place or stead, in any and all
capacities, to sign any amendments to this registration statement on Form S-8
(including post-effective amendments) and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each 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 as he or she might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his or her substitute or substitutes, 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------------- --------------------------------------- --------------------------------
<S> <C> <C>
/s/ Michael W. Malaga Chairman of the Board and Chief May 5, 1999
- --------------------------------- Executive Officer (Principal Executive
Michael W. Malaga Officer)
/s/ Henry P. Huff Chief Financial Officer and Vice May 5, 1999
- --------------------------------- President, Finance (Principal
Henry P. Huff Financial and Accounting Officer)
/s/ Robert K. Dahl
- --------------------------------- Director May 5, 1999
Robert K. Dahl
- --------------------------------- Director May 5, 1999
Michael J. Fitzpatrick
/s/ Reed H. Hundt
- --------------------------------- Director May 5, 1999
Reed H. Hundt
/s/ Andrew S. Rachleff
- --------------------------------- Director May 5, 1999
Andrew S. Rachleff
</TABLE>
6
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Dino J. Vendetti
- --------------------------------- Director May 5, 1999
Dino J. Vendetti
/s/ J. Peter Wagner
- --------------------------------- Director May 5, 1999
J. Peter Wagner
/s/ Frank D. Yeary
- --------------------------------- Director May 5, 1999
Frank D. Yeary
</TABLE>
7
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INDEX TO EXHIBITS
Exhibit
Number
- -------
5.1 Opinion of Latham & Watkins.
10.1* NorthPoint Communications Group, Inc. Employee Stock Purchase Plan.
10.2 First Amendment to the NorthPoint Communications Group, Inc. Employee
Stock Purchase Plan.
23.1 Consent of Latham & Watkins (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included on page 5 of this registration statement).
________________________
*Incorporated by reference to Exhibit 10.1 of Amendment No. 1 to the
registrant's registration statement on Form S-1 (File No. 333-73065) filed on
March 31, 1999.
8
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EXHIBIT 5.1
OPINION OF LATHAM & WATKINS
[Letterhead of LATHAM & WATKINS]
May 6, 1999
NorthPoint Communications Group, Inc.
222 Sutter Street
San Francisco, California 94108
Re: NorthPoint Communications Group, Inc.
4,000,000 shares of common stock, par value $0.001 per share
------------------------------------------------------------
Ladies/Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), of an aggregate of 4,000,000 shares (the "Shares") of
common stock, par value $0.001 per share, of NorthPoint Communications Group,
Inc. (the "Company") issuable under the Company's 1999 Employee Stock Purchase
Plan (the "Plan") by the Company on Form S-8 filed with the Securities and
Exchange Commission (the "Commission") on May 6, 1999 (the "Registration
Statement"), you have requested our opinion with respect to the matters set
forth below.
In our capacity as your special counsel in connection with such
registration, we are familiar with the proceedings taken and proposed to be
taken by the Company 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.
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 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 the Shares to be
issued under the Plan have been duly authorized, and upon the issuance and
delivery of the Shares in the manner
<PAGE>
contemplated by the Plan, and assuming the Company completes all actions and
proceedings required on its part to be taken prior to the issuance and delivery
of the Shares pursuant to the terms of the Plan, including, without limitation,
collection of required payment for the Shares, the Shares will be validly
issued, fully paid and nonassessable.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent. We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
<PAGE>
EXHIBIT 10.2
FIRST AMENDMENT TO
THE NORTHPOINT COMMUNICATIONS HOLDINGS, INC.
EMPLOYEE STOCK PURCHASE PLAN
NorthPoint Communications Holdings, Inc., a corporation organized
under the laws of the State of Delaware (the "Company"), adopted the NorthPoint
Communications Holdings, Inc. Employee Stock Purchase Plan (the "Plan"), by
action of the Company's Board of Directors on March 22, 1999. The Plan was
approved by the stockholders of the Company on April 9, 1999. The Company's
name was subsequently changed to "NorthPoint Communications Group, Inc."
In order to change the effective date of the Plan, this First Amendment to
the Plan has been adopted by an action of the Company's Board of Directors on
May 4, 1999.
Section 1(j) of the Plan is hereby amended to read in its entirety as
follows:
"(j) "Effective Date" means May 4, 1999."
* * * * * *
I hereby certify that the foregoing First Amendment to the Plan was adopted
by the Board of Directors of NorthPoint Communications Group, Inc. on May 4,
1999.
Executed at San Francisco, California on this 5th day of May, 1999.
/s/ Steven Gorosh
-----------------
Steven Gorosh
Secretary
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to incorporation by reference in the registration statement
on Form S-8 of NorthPoint Communications Group, Inc., relating to the NorthPoint
Communications Group, Inc. Employee Stock Purchase Plan, of our report dated
February 24, 1999, on our audits of the financial statements of NorthPoint
Communications, Inc. as of December 31, 1997 and 1998, for the period from May
16, 1997 (date of inception) through December 31, 1997, and for the year ended
December 31, 1998, as included in NorthPoint Communications Group, Inc.'s
Registration Statement (333-73065) on Form S-1 dated May 5, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
San Francisco, California
May 5, 1999
