<PAGE>
As filed with the Securities and Exchange Commission on December 29, 1999
REGISTRATION STATEMENT NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
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 STOCK OPTION AND GRANT 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
------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
Title of Securities Amounts to be Proposed Maximum Proposed Maximum Amount of
Being Registered Registered (1) Offering Price Aggregate Offering Registration Fee
Per Share (2) Price
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 443,868 shares $ 18.00 $ 7,989,624.00 $2,109.26
value $.01 per share 134,000 shares $ 9.35 $ 1,252,900.00 330.77
75,000 shares $ 10.00 $ 750,000.00 198.00
3,000 shares $ 10.75 $ 32,250.00 8.51
126,000 shares $ 12.0625 $ 1,519,875.00 401.25
5,000 shares $ 12.50 $ 62,500.00 16.50
2,000 shares $ 13.625 $ 27,250.00 7.19
105,000 shares $ 14.875 $ 1,561,875.00 412.34
7,000 shares $ 15.25 $ 106,750.00 28.18
70,000 shares $ 18.625 $ 1,303,750.00 344.19
40,000 shares $ 19.3125 $ 772,500.00 203.94
2,000 shares $ 19.50 $ 39,000.00 10.30
===================================================================================================
</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 Stock Option and Grant Plan (the "Option
Plan") in the event of a stock dividend, reverse stock split, split-up,
recapitalization, forfeiture of stock under the Option Plan or other
similar event.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to Rule 457(h) under the Securities Act of
1933 as follows: (a) in the case of shares of Common Stock which may be
purchased upon the exercise of outstanding options which have been
previously granted, the fee is calculated on the basis of the price at
which the options may be exercised; and (b) in the case of shares of
Common Stock for which options have not yet been granted and the price
of which is therefore unknown, the fee is calculated on the basis of
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.
- --------------------------------------------------------------------------------
================================================================================
- --------------------------------------------------------------------------------
<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.
2
<PAGE>
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 stockholder (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.
**10.1 Interspeed, Inc. 1999 Stock Option and Grant 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>
3
<PAGE>
* 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.
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 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
4
<PAGE>
(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>
6
<PAGE>
<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>
7
<PAGE>
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.
**10.1 Interspeed, Inc. 1999 Stock Option and Grant 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).
* 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.
</TABLE>
8
<PAGE>
<PAGE>
Exhibit 5.1
December 29, 1999
Interspeed, Inc.
39 High Street
North Andover, MA 01845
Re: REGISTRATION STATEMENT ON FORM S-8 FOR INTERSPEED, INC. 1999
STOCK OPTION AND GRANT 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 1,012,868 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 Stock Option and Grant Plan (the
"Stock Option Plan").
As counsel for the Company, we have examined copies of the Stock Option
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 Stock Option 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 Stock Option and Grant 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
