<PAGE>
As filed with the Securities and Exchange Commission on December 29, 1999
REGISTRATION STATEMENT 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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INTERSPEED, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-3333365
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
39 HIGH STREET
NORTH ANDOVER, MASSACHUSETTS 01845
(978) 688-6164
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
INTERSPEED, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
------------------------------------
STEPHEN A. IDE
PRESIDENT
INTERSPEED, INC.
39 HIGH STREET
NORTH ANDOVER, MASSACHUSETTS 01845
(978) 688-6164
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------------------
With copy to:
THOMAS P. STORER, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Securities Being Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 200,000 shares $18.00 (2) $3,600,000.00 $950.40
per share
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</TABLE>
(1) This Registration Statement also relates to such indeterminate number of
additional shares of Common Stock, par value $.01 per share, of
Interspeed, Inc. (the "Common Stock") as may be required pursuant to the
Interspeed, Inc. 1999 Employee Stock Purchase Plan (the "Purchase Plan")
in the event of a stock dividend, reverse stock split, split-up,
recapitalization, forfeiture of stock under the Purchase Plan or other
similar event. In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, as amended (the "Securities Act"), this registration
statement also covers an indeterminate amount of interests to be offered
or sold pursuant to the employee benefit plan described herein.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act of 1933 solely for the purposes of determining the amount
of the registration fee. The registration fee is based upon the average
of the high and low sale price for a share of Common Stock, as reported
on the Nasdaq National Market System as of a date within 5 business days
prior to filing this Registration Statement.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
Prospectuses is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Interspeed, Inc. (the "Registrant") hereby incorporates by reference the
following documents which have previously been filed with the Securities and
Exchange Commission (the "Commission"):
(a) the Registrant's Annual Report on Form 10-K for the year
ended September 30, 1999, as filed with the Commission on
December 29, 1999 pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act");
(b) all other reports filed with the Commission by the Registrant
pursuant to Section 13(a) or 15(d) of the Exchange Act
since September 30, 1999; and
(c) the description of the Registrant's Common Stock contained in the
Registration Statement on Form 8- A, dated September 21, 1999, as
filed with the Commission on September 21, 1999 pursuant to
Section 12(g) of the Exchange Act and any amendments or reports
filed for the purpose of updating such description.
In addition, all documents subsequently filed with the Commission 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 hereto that indicates that all
securities offered hereunder 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 hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein or in any subsequently filed document
which also is 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.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 145 of the General Corporation Law of the
State of Delaware (the "DGCL"), Article VII of the Registrant's Amended and
Restated Certificate of Incorporation (the "Certificate") provides that no
director of the Registrant shall 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 or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) in
respect of certain unlawful dividend payments or stock redemptions or
repurchases, or (iv) for any transaction from which the director derived an
improper personal benefit. In addition, the Certificate provides that if the
DGCL is amended to authorize the further elimination or limitation of the
personal liability of directors, then the liability of a director of the
Registrant shall be eliminated or limited to the fullest extent permitted by the
DGCL, as so amended.
Article V of the Registrant's Amended and Restated By-laws (the
"By-laws") provides for indemnification by the Registrant of its officers and
certain non-officer employees under certain circumstances against expenses
(including attorneys fees, judgments, fines and amounts paid in settlement)
reasonably incurred in connection with the defense or settlement of any
threatened, pending or completed legal proceeding in which any such person is
involved by reason of the fact that such person is or was an officer or an
employee of the Registrant if such person acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the Registrant, and, with respect to criminal actions or proceedings, that such
person had no reasonable cause to believe his or her conduct was unlawful. We
have also obtained directors' and officers' insurance against certain
liabilities.
The Stockholder Rights Agreement, filed as Exhibit 10.6 to the
Registrant's Registration Statement on Form S-1 (File No. 333-81071), provides
for indemnification by the Registrant of Brooktrout, Inc., a stockholder of the
Registrant and the controlling persons of such stockholders (one of whom is a
director of the Registrant) against claims and liabilities, including claims and
liabilities arising under the securities laws.
Under Section 6 of the Underwriting Agreement filed as Exhibit 1.1 to
the Registrant's Registration Statement on Form S-1 (File No. 333-81071), the
Underwriters (as defined therein) have agreed to indemnify, under certain
conditions, the Registrant, its directors, certain officers and persons who
control the Registrant within the meaning of the Securities Act against certain
liabilities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
<TABLE>
<CAPTION>
EXHIBIT
<S> <C>
*3.1 Amended and Restated Certificate of Incorporation of Registrant.
*3.2 Amended and Restated By-laws of Registrant.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered.
**10.3 Interspeed, Inc. Employee Stock Purchase Plan
23.1 Consent of Counsel (included in Exhibit 5.1 hereto).
23.2 Consent of Deloitte & Touche LLP
</TABLE>
3
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<TABLE>
<S> <C>
24.1 Powers of Attorney (included in the signature page of this Registration Statement).
</TABLE>
* Incorporated by reference to the relevant exhibit on the
Registrant's Form 10-K for the year ended September 30, 1999, as
filed with the Commission on December 29, 1999.
** Incorporated by reference to the relevant exhibit to the Registrant's
Registration Statement on Form S-1 (File No. 333-81071), as amended, as
filed with the Commission.
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 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. 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 a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 (a)(1)(i) and (a)(1)(ii)
herein 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 undersigned 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; and
(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 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 Securities and Exchange
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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>
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 Town of North Andover, The Commonwealth of Massachusetts, on
this 29th day of December, 1999.
INTERSPEED, INC.
By: /s/ Stephen A. Ide
-------------------
Stephen A. Ide
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints each of Stephen A. Ide and William J.
Burke such person's true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto each 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 such person might or could do
in person, hereby ratifying and confirming all that any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, 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/ Stephen A. Ide
------------------------- President and Director (Principal
Stephen A. Ide Executive Officer) December 29, 1999
/s/ Rajeev Agarwal Chief Technology Officer, Senior
------------------------- Vice President-Research and December 29, 1999
Rajeev Agarwal Development and Director
/s/ William J. Burke Chief Financial Officer, Senior
------------------------- Vice President-Finance, and December 29, 1999
William J. Burke Treasurer (Principal Financial
and Accounting Officer)
/s/ Eric R. Giler
------------------------- Director December 29, 1999
Eric R. Giler
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert G. Barrett
-------------------------- Director December 29, 1999
Robert G. Barrett
/s/ Paul J. Severino
-------------------------- Director December 29, 1999
Paul J. Severino
</TABLE>
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THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who will administer the plan) have duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boston, the Commonwealth of Massachusetts, on
this 29th day of December, 1999.
INTERSPEED, INC.,
as administrator of the Interspeed, Inc. 1999
Employee Stock Purchase Plan
By : /s/ Stephen A. Ide
-------------------
Name: Stephen A. Ide
Title: President
8
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
*3.1 Amended and Restated Certificate of Incorporation of Interspeed, Inc.
*3.2 Amended and Restated By-laws of Interspeed, Inc.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered.
**10.3 Interspeed, Inc. Employee Stock Purchase Plan
23.1 Consent of Counsel (included in Exhibit 5.1 hereto).
23.2 Consent of Deloitte & Touche LLP
24.1 Powers of Attorney (included in the signature page of this Registration Statement).
</TABLE>
* Incorporated by reference to the relevant exhibit to the
Registrant's Annual Report on Form 10-K for the year ended September
30, 1999, as filed with the Commission on December 29, 1999.
** Incorporated by reference to the relevant exhibit to the Registrant's
Registration Statement on Form S-1 (File No. 333-81071), as amended, as
filed with the Commission.
9
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December 29, 1999
Interspeed, Inc.
39 High Street
North Andover, MA 01845
Re: REGISTRATION STATEMENT ON FORM S-8 FOR INTERSPEED, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Interspeed,
Inc., a Delaware corporation (the "Company"), in connection with the preparation
and filing with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Securities Act"), of a Registration Statement on Form
S- 8 (the "Registration Statement") relating to 200,000 shares (the "Shares") of
the Company's common stock, par value $.01 per share ("Common Stock") which the
Company may issue pursuant to the 1999 Employee Stock Purchase Plan (the
"Purchase Plan").
As counsel for the Company, we have examined copies of the Purchase
Plan, the Company's Amended and Restated Certificate of Incorporation and
Amended and Restated By-laws, each as presently in effect, and such records,
certificates and other documents of the Company as we have deemed necessary or
appropriate for the purposes of this opinion.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and the Commonwealth of
Massachusetts and the Delaware General Corporation Law.
Based on the foregoing, we are of the opinion that upon the issuance
and delivery of the Shares against payment therefore in accordance with the
terms of the Purchase Plan, the Shares will be validly issued, fully paid and
non-assessable shares of the Company's Common Stock.
The foregoing assumes all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
for the Interspeed, Inc. 1999 Employee Stock Purchase Plan, on Form S-8, of
our report dated October 21, 1999, appearing in the Annual Report on Form
10-K of Interspeed, Inc. for the year ended September 30, 1999.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Boston, Massachusetts
December 29, 1999
