As filed with the Securities and Exchange Commission on February 22, 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 700, Rochester, New York 14604-2417
(Address of Principal Executive Offices) (Zip Code)
CHOICE ONE COMMUNICATIONS INC. 1998 EMPLOYEE STOCK OPTION PLAN
(November 1999 Restatement)
(Full title of the Plan(s))
Ajay Sabherwal
Senior Vice President, Finance and Chief Financial Officer
Choice One Communications Inc.
100 Chestnut Street, Suite 700
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 Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount to be price per Offering Registration
Registered(1) Registered(1) share(2) Price(2) Fee
- ------------- ------------- ---------- ---------- ------------
Common Stock 1,063,791 $27.91 $29,686,417 $7,837
$.01 par value
(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) Estimated in accordance with Rule-457(c) under the Securities
Act of 1933 solely for the purpose of calculating the registration fee. The
computation is based upon the average of the high and low prices of our common
stock as reported on the Nasdaq Stock Market's National Market on February 17,
2000.
<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 and filed with the Securities and Exchange Commission pursuant
to the Securities Act of 1933.
2. 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.
The above is a general summary of certain provisions of the DGCL and is
subject, in all cases, to the specific and detailed provisions of Sections
721-725 of the BCL.
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.
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 insuring the Corporation or persons entitled to
indemnification under Section 1 of
<PAGE>
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.
<PAGE>
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 22nd day of
February, 2000.
CHOICE ONE COMMUNICATIONS INC.
/s/ John J. Zimmer
By: ------------------------------
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 and 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 and February 22, 2000
- --------------------------- Chief Executive Officer
Steve M. Dubnik (Principal Executive Officer)
/s/ Ajay Sabherwal Senior Vice President, Finance February 22, 2000
- --------------------------- and Chief Financial Officer
Ajay Sabherwal (Principal Financial Officer)
Director February 22, 2000
- ---------------------------
John B. Ehrenkranz
/s/ Bruce M. Hernandez Director February 22, 2000
- ---------------------------
Bruce M. Hernandez
/s/ Michael M. Janson Director February 22, 2000
- ----------------------------
Michael M. Janson
/s/ Robert M. Van Degna Director February 22, 2000
- ----------------------------
Robert M. Van Degna
/s/ Royce Holland Director February 22, 2000
- --------------------------------
Royce Holland
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Location
- ----------- ----------- ----------------
4.1 1998 Employee Stock Option Plan Contained in Exhibit 10.1
(November 1999 Restatement) to the Registrant's
Registration Statement on
Form S-1 dated
February 16, 2000 (File
No. 333-91321)
4.2 Restated Certificate of Incorporation Contained in Exhibit 3.1
to the Registrant's
Registration Statement on
Form S-1 dated
February 16, 2000 (File
No. 333-91321)
5.1 Legal Opinion of Nixon Peabody LLP Filed Herewith
23.1 Consent of Nixon Peabody LLP Contained in Opinion filed
as Exhibit 5-1 to this
Registration Statement
23.2 Consent of Arthur Andersen LLP Filed Herewith
independent accountants
23.3 Consent of Ernst & Young LLP Filed Herewith
independent accountants
Exhibit 5.1
[LOGO]
Clinton Square
Post Office Box 1051
Rochester, New York 14603-1051
Fax: (716) 263-1600
Direct Dial: (716) 263-1000
February 22, 2000
Choice One Communications, Inc.
100 Chestnut Street
Suite 700
Rochester, New York 14607-2417
Ladies and Gentlemen:
We have acted as counsel to Choice One Communications, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") to be filed by the Company on February
22, 2000 with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"), for the purpose of
registering with the Commission the issuance and sale of 1,063,791 shares of the
Common Stock of the Company, par value $.01 per share (the "Common Stock"),
pursuant to the Company's 1999 Employee Stock Option Plan (the "Plan").
This opinion is being delivered to you in connection with the
Registration Statement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of all such records of the Company and all such agreements,
certificates of public officials, certificates of officers or other
representatives of the Company, and such other documents, certificates and
corporate or other records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein, including (i) the Amended and Restated
Certificate of Incorporation of the Company, (ii) the By-Laws of the Company, as
amended to the date hereof, and (iii) the Plan.
As to questions of fact material to our opinions expressed herein, we
have, when relevant facts were not independently established, relied upon
certificates of, and information received from, the Company and/or
representatives of the Company. We have made no independent investigation of the
facts stated in such certificates or as to any information received from the
Company and/or representatives of the Company and do not opine as to the
accuracy of such factual matters. We also have relied, without investigation,
upon certificates and other documents from, and conversations with, public
officials.
Members of our firm involved in the preparation of this opinion are
licensed to practice law in the State of New York and we do not purport to be
experts on, or to express any opinion herein concerning, the laws of any
jurisdiction other than the laws of the State of New York and the General
Corporation Law of the State of Delaware.
<PAGE>
Choice One Communications, Inc.
February 22, 2000
Page 2
Based upon and subject to the foregoing, and the other qualifications
and limitations contained herein, and after (a) the above-referenced
Registration Statement has become effective under the Act and assuming that such
effectiveness remains in effect throughout the period during which shares of
Common Stock are offered and sold pursuant to the Plan, (b) the shares of Common
Stock to be offered and sold pursuant to the Plan have, if required, been duly
qualified or registered, as the case may be, for sale under applicable
securities laws and all applicable securities laws are complied with, (c) all
necessary action by the Board of Directors or Compensation Committee of the
Board of Directors of the Company shall have been taken to duly authorize the
offer, issuance and sale of Common Stock to be offered and sold pursuant to the
Plan, and (d) the shares of Common Stock to be offered and sold pursuant to the
Plan have been delivered pursuant to and in accordance with the terms of the
Plan and related agreements and instruments, we are of the opinion that the
1,063,791 shares of Common Stock to be offered and sold pursuant to the Plan
will have been duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder.
This opinion is intended solely for your benefit in connection with the
transactions described above and, except as provided in the immediately
preceding paragraph, may not be otherwise communicated to, reproduced, filed
publicly or relied upon by, any other person or entity for any other purpose
without our express prior written consent. This opinion is limited to the
matters stated herein, and no opinion or belief is implied or may be inferred
beyond the matters expressly stated herein. The opinions expressed herein are
rendered as of the date hereof, and we disclaim any undertaking to advise you of
changes in law or fact which may affect the continued correctness of any of our
opinions as of a later date.
Very truly yours,
/s/ Nixon Peabody LLP
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 26, 2000
included in Choice One Communications Inc.'s Form S-1 (No. 333-91321) for the
year ended December 31, 1999 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Rochester, New York,
February 22, 2000
Exhibit 23.3
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the Choice One Communications, Inc. 1998
Employee Stock Option Plan of our reports dated November 10, 1999, with respect
to the financial statements of Atlantic Connections, Inc. and Atlantic
Connections, Ltd., respectively, and our report dated June 4, 1999 (except for
Note 9, as to which the date is November 3, 1999) with respect to the
consolidated financial statements of Atlantic Connections, LLC, included in the
Registration Statement (Form S-1 No. 333-91321) and related Prospectus of Choice
One Communications, Inc., filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
February 16, 2000
