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As filed with the Securities and Exchange Commission on January 17, 2001
Registration No. __________
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UNITED STATES
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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NETWORK ACCESS SOLUTIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 54-1738938
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
13650 Dulles Technology Drive
Herndon, Virginia 20171
(Address of principal executive offices) (Zip Code)
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1998 STOCK INCENTIVE PLAN -- ADDITIONAL SHARES
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full titles of plans)
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Name, address and telephone Copy to:
number of agent for service:
WORTH D. MACMURRAY, ESQUIRE SYLVIA M. MAHAFFEY, ESQUIRE
Network Access Solutions Corporation Shaw Pittman
13650 Dulles Technology Drive 2300 N Street, N.W.
Herndon, VA 20171 Washington, DC 20037
(703) 793-5109 (202) 663-8027
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CALCULATION OF REGISTRATION FEE
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| | Proposed | Proposed |
Title of | Amount to | Maximum | Maximum | Amount of
Securities | be | Offering | Aggregate | Registration
to be | Registered | Price per | Offering Price | Fee (2)
Registered | (1) | Share (2) | (2) |
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Common | | | |
Stock, | | | |
$0.001 par | 2,500,000 | N/A | $2,150,000 | $651.52
value | | | |
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(1) Of the shares of Common Stock being registered hereunder, (i)
2,000,000 additional shares are reserved for issuance pursuant to the
1998 Stock Incentive Plan (the "Option Plan"); and (ii) an aggregate
of 500,000 shares are reserved for issuance pursuant to the 2000
Employee Stock Purchase Plan (the "Purchase Plan"). In addition,
pursuant to Rule 416 under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate number of
additional shares of Common Stock as may become available for
issuance pursuant to the foregoing plans in the event of certain
changes in outstanding shares, including reorganizations,
recapitalizations, stock splits, stock dividends and reverse stock
splits.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) and (h). The proposed maximum offering price
per share, proposed maximum aggregate offering price and the amount
of the registration fee are based on the average of the high and low
prices of Network Access Solutions Corporation Common Stock reported
on the Nasdaq National Market for the five-day period ending January
12, 2001 (i.e. $.86 per share).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be included in this Form S-8 Registration Statement
pursuant to introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the Registrant with
the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) Prospectus filed pursuant to Rule 424(b) on June 4, 1999 and
Quarterly Report on Form 10-Q for the quarter ended June 30, 1999;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"), since
the end of the fiscal year covered by the documents referred to in (a)
above; and
(c) Description of Common Stock of the Registrant contained or
incorporated in the registration statements filed by the Registrant under
the Exchange Act, including any amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant with the
Commission 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 securities offered have been sold or which de-registers all
securities remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part of this
Registration Statement from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
As permitted by the Delaware General Corporation Law, Article Tenth
of the Registrant's Amended and Restated Certificate of Incorporation (the
"Certificate") provides for indemnification of directors and officers of
the Registrant, as follows:
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The Registrant shall, to the fullest extent permitted by Section
145 of the Delaware General Corporation Law, as amended from
time to time, indemnify each 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, by reason of the fact that he
is or was, or has agreed to become, a director or officer of the
Registrant, or is or was serving, or had agreed to serve, at the
request of the Registrant, as a director, officer or trustee of,
or in a similar capacity with, another corporation, partnership,
joint venture, trust or other enterprise (including any employee
benefit plan), or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and
any appeal therefrom.
Also, the Registrant's By-Laws contain indemnification procedures
that implement the indemnification provisions of the Amended and Restated
Certificate of Incorporation. The Delaware General Corporation Law permits
a corporation to indemnify its directors and officers, among others,
against judgments, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceedings to which they may be a
party by reason of their service in those or other capacities, if such
person acted in good faith and in a manner which such person 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 that such conduct was unlawful.
As permitted by the Delaware General Corporation Law, Article Ninth
of the Registrant's Amended and Restated Certificate of Incorporation
provides for limitation of liability of directors of the Registrant, as
follows:
A director of the Registrant shall not 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 of its stockholders, (ii) for acts or omissions not
in good faith or which involved intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
EXHIBIT
NUMBER DESCRIPTION
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4.1 * Amended and Restated Certificate of Incorporation (incorporated
by reference from Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1 (No. 333-74679), as amended)
4.2 * Amended and Restated By-Laws (incorporated by reference from
Exhibit 3.2 of the Registrant's Registration Statement on Form
S-1 (No. 333-74679), as amended)
4.3 1998 Stock Incentive Plan, as amended
4.4 2000 Employee Stock Purchase Plan, as amended
5.1 Opinion of Shaw Pittman, counsel for the Registrant, regarding
the legal validity of the shares of Common Stock being
registered for issuance under each of the Plans
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24 Power of Attorney (included on Signature Page)
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* Incorporated by reference.
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Item 9. Undertakings.
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;
(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 this 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.
Paragraphs (1)(i) and (1)(ii) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this 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.
(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) To submit the plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner, and to make all changes
required by the IRS in order to qualify the plan.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 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, as
amended, 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 Herndon,
Commonwealth of Virginia, on the 17th day of January, 2001.
NETWORK ACCESS SOLUTIONS CORPORATION
By: /s/ Jonathan P. Aust
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Jonathan P. Aust
Chief Executive Officer and
Chairman of the Board of Directors
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Jonathan P. Aust as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his
name, place and stead, in any and all capacities, to sign any or all
further amendments (including post-effective amendments) 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 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 he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
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 Form
S-8 Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ JONATHAN P. AUST Chief Executive Officer and Jan. 17, 2001
--------------------------- Chairman of the Board of Directors
Jonathan P. Aust (Principal Executive Officer)
and a Director
/s/ SCOTT G. YANCEY, JR. Chief Financial Officer Jan. 17, 2001
--------------------------- (Principal Financial and
Scott G. Yancey, Jr. Accounting Officer)
/s/ NICHOLAS J. WILLIAMS President and Jan. 17, 2001
--------------------------- Chief Operating Officer
Nicholas J. Williams and a Director
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Signature Title Date
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/s/ BRION B. APPLEGATE Director Jan. 17, 2001
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Brion B. Applegate
/s/ ROBERT A. NICHOLSON Director Jan. 17, 2001
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Robert A. Nicholson
/s/ DENNIS R. PATRICK Director Jan. 17, 2001
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Dennis R. Patrick
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 * Amended and Restated Certificate of Incorporation (incorporated
by reference from Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1 (No. 333-74679), as amended)
4.2 * Amended and Restated By-Laws (incorporated by reference from
Exhibit 3.2 of the Registrant's Registration Statement on Form
S-1 (No. 333-74679), as amended)
4.3 1998 Stock Incentive Plan, as amended
4.4 2000 Employee Stock Purchase Plan, as amended
5.1 Opinion of Shaw Pittman, counsel for the Registrant, regarding
the legal validity of the shares of Common Stock being
registered for issuance under each of the Plans
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24 Power of Attorney (included on Signature Page)
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* Incorporated by reference.
