As filed with the Securities and Exchange Commission on September 29, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CHOICE ONE COMMUNICATIONS INC.
(exact name of registrant as specified in its charter)
DELAWARE 16-1550742
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
100 Chestnut Street, Suite 600, Rochester, New York 14604-2417
(Address of Principal Executive Offices) (Zip Code)
CHOICE ONE COMMUNICATIONS INC. 1999 DIRECTOR STOCK INCENTIVE PLAN
(Full title of the Plan(s))
Ajay Sabherwal
Executive Vice President, Finance and Chief Financial Officer
Choice One Communications Inc.
100 Chestnut Street, Suite 600
Rochester, New York 14607-2417
(716) 246-4231
Facsimile (716) 530-2733
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
James A. Locke III, Esq.
Nixon Peabody LLP
1300 Clinton Square
Rochester, New York 14604
(716) 263-1000
Facsimile (716) 263-1600
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities Offering Amount Aggregate Offering
to be Registered(1) to be Registered(1) price per share(2) Price(2) Registration Fee
---------------------- ----------------------- ------------------------- ------------- --------------------
<S> <C> <C> <C> <C>
Common Stock 531,896 $11.15 $5,930,640 $1,565.00
$.01 par value
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(1) Pursuant to Rule 416(b) under the Securities Act of 1933, this registration
statement covers such additional shares of Common Stock as may be issuable
pursuant to anti-dilution provisions of the Plan. (2) Inserted solely for the
purpose of calculating the registration fee pursuant to Rule 457(h)(1) and
estimated in accordance with Rule 457(c) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee.
<PAGE>
Part II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents which have been filed by Choice One
Communications Inc. (the "Company") with the Securities and Exchange Commission
are incorporated herein by reference:
1) The Company's Registration Statement, dated November 19, 1999 and
amended January 3, 2000, January 27, 2000, February 10, 2000 and February 16,
2000 on Form S-1 (Registration No. 333-91321) and filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933.
2) The Company's Quarterly Report on Form 10-Q Registration No. 29279)
for the fiscal quarter ended March 31, 2000, filed with the Commission on May
15, 2000.
3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2000, filed with the Commission on August 14, 2000.
4) The Company's Reports on Form 8-K filed with the Commission on May
15, 2000, August 11, 2000 and Form 8-K/A filed on May 16, 2000 and September 15,
2000.
5) All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to
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 remaining unsold shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Delaware General Business Corporation Law (the "DGCL") provides
that if a derivative action is brought against a director or officer of a
corporation, the corporation may indemnify him or her against amounts paid in
settlement and reasonable expenses, including attorneys' fees incurred by him or
her, in connection with the defense or settlement of such action, if such
director or officer acted in good faith for a purpose which he or she reasonably
believed to be in the best interests of the corporation, except that no
indemnification shall be made without court approval in respect of a threatened
action, or a pending action settled or otherwise disposed of, or in respect of
any matter as to which such director or officer has been found liable to the
corporation. In a nonderivative action or threatened action, the DGCL provides
that a corporation may indemnify a director or officer against judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys' fees
incurred by him or her in defending such action if such director or officer
acted in good faith for a purpose which he or she reasonably believed to be in
the best interests of the corporation.
Under the DGCL, a director or officer who is successful, either in a
derivative or nonderivative action, is entitled to indemnification as outlined
above. Under any other circumstances, such director or officer may be
indemnified only if certain conditions specified in the DGCL are met. The
indemnification provisions of the DGCL are not exclusive of any other rights to
which a director or officer seeking indemnification may be entitled pursuant to
the provisions of the certificate of incorporation or the bylaws of a
corporation or, when authorized by such certificate of incorporation or bylaws,
pursuant to a shareholders' resolution, a directors' resolution or an agreement
providing for such indemnification.
Article V, Section 1 of the Company's Bylaws contains provisions
requiring indemnification by the Company of its directors and officers against
certain liabilities and expenses which they may incur as directors and officers
of the Company or of certain other entities in accordance with Section 145 of
the DGCL.
<PAGE>
Section 145 of the DGCL also contains provisions authorizing a
corporation to obtain insurance on behalf of any director and officer against
liabilities, whether or not the corporation would have the power to indemnify
against such liabilities. Article V, Section 9 indicates that the Company may
maintain insurance indemnifying the Corporation or persons entitled to
indemnification under Section 1 of Article V of the Bylaws for liabilities
against which they are entitled to indemnification under Article V of the Bylaws
or insuring such persons for liabilities against which they are not entitled to
indemnification under Article V of the Bylaws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
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;
(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;
(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-1 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 by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 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 herein, 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 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
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Rochester, State of New York, on the 21st day of
September, 2000.
CHOICE ONE COMMUNICATIONS INC.
By:/s/John J. Zimmer
------------------------------
John J. Zimmer
Vice President - Finance
KNOWN ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby severally constitutes and appoints Ajay Sabherwal, John J. Zimmer
and Kim Robert Scovill, and each of them, his true and lawful attorney-in-fact
and agent, 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) to the 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 agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each said attorneys-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 of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/Steve M. Dubnik Chairman, President September 21, 2000
--------------------- and Chief Executive
Steve M. Dubnik Officer (Principal
Executive Officer)
/s/Ajay Sabherwal Executive Vice President, September 21, 2000
--------------------- Finance and Chief
Ajay Sabherwal Financial Officer
(Principal Financial Officer)
/s/John B. Ehrenkranz Director September 21, 2000
---------------------
John B. Ehrenkranz
/s/Bruce M. Hernandez Director September 21, 2000
---------------------
Bruce M. Hernandez
/s/Michael M. Janson Director September 21, 2000
---------------------
Michael M. Janson
/s/Robert M. Van Degna Director September 21, 2000
---------------------
Robert M. Van Degna
Director September 21, 2000
---------------------
Royce J. Holland
Director September 21, 2000
---------------------
Richard Postma
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EXHIBIT INDEX
Exhibit No. Description Location
----------- -------------- -----------
4.1 1999 Director Stock Filed Herewith
Incentive Plan
4.2 Amended and Restated Contained in Exhibit 3.1 of
Certificate of Choice One's Registration
Incorporation Statement on Form S-1 dated
January 27, 2000 (File No.
333-91321)
4.3 Amendment to Contained in Exhibit 3.1 of
Certificate of Choice One's Form 8-K filed on
Incorporation August 11, 2000 (File No.
0-29279)
5.1 Legal Opinion of Filed Herewith
Nixon Peabody LLP
23.1 Consent of Nixon Contained in opinion filed
Peabody LLP as Exhibit 5.1 to this
Registration Statement
23.2 Consent of Arthur Filed Herewith
Andersen LLP
independent accountants
23.3 Consent of Ernst & Young LLP Filed Herewith
independent accountants
23.4 Consent of BDO Seidman, LLP Filed Herewith
independent accountants
24.1 Power of Attorney Included in Part II of this
Registration Statement
