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As filed with the Securities and Exchange Commission on August 4, 2000
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FASTNET CORPORATION
(Exact name of issuer as specified in its charter)
Pennsylvania
(State or other jurisdiction of 23-2767197
incorporation of organization) (I.R.S. Employer Identification No.)
Two Courtney Place - Suite 130
3864 Courtney Street
Bethlehem , Pennsylvania 18017
(Address of principal executive offices)
Equity Compensation Plan
(Full title of the plans)
David K. Van Allen
Chief Executive Officer
FASTNET Corporation
Two Courtney Place - Suite 130
Bethlehem, Pennsylvania 18017
(Name and address of agent for service)
(610) 266-6700
(Telephone number, including area code, of agent for service)
Copy to:
STEPHEN M. GOODMAN, ESQ.
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
(215) 963-5000
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<CAPTION>
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------------------
Title of Number of shares Proposed maximum Proposed maximum Amount of
securities to to be offering price Aggregate offering registration fee (4)
be registered registered (1) per share price
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, 2,998,000 $4.33 (2) $4,330,650 (2) $1,143
no par value $1.88 (3) $3,755,958 (3) $ 992
-------
$2,135
------------------------------------------------------------------------------------------------------
</TABLE>
(1) This registration statement covers shares of common stock of FASTNET
Corporation which may be offered or sold pursuant to the Equity
Compensation Plan. In addition, pursuant to Rule 416 (a) under the
Securities Act of 1933, this registration statement also covers an
indeterminate number of shares of common stock that may be issued upon
stock splits, stock dividends or similar transactions in accordance with
Rule 416.
(2) 1,000,150 shares underlying options outstanding under the Equity
Compensation Plan are calculated pursuant to Rule 457(h) of the Securities
Act of 1933 solely for the purpose of calculating the registration fee,
based upon the price at which such outstanding options may be exercised
(448,000 shares at $1.50 per share; 113,400 shares at $2.50 per share;
21,500 shares at $3.00 per share; 1,500 shares at $4.09 per share; 9,500
shares at $4.19 per share; 82,000 shares at
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$4.75 per share; 19,500 shares at $4.81 per share; 1,500 shares at $5.81
per share; 1,500 shares at 6.25 per share; 20,000 shares at $7.13 per
share; 273,250 shares at $9.25; 500 shares at $9.88 per share; 2,000 shares
at $10.06 per share; 4,000 shares at $10.25 per share; 2,000 shares at
$13.58 per share).
(3) The remaining 1,997,850 unissued shares authorized under the Equity
Compensation Plan are calculated pursuant to Rule-457(h) and (c) under the
Securities Act of 1933 solely for the purpose of calculating the
registration fee, 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
August 3, 2000.
(4) Calculated pursuant to Section 6(b) as follows: proposed maximum aggregate
offering price multiplied by .000264.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I of Form
S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed by FASTNET Corporation (the "Company")
with the Securities and Exchange Commission (the "Commission"), are incorporated
by reference in this Registration Statement and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed with the Commission on March 30, 2000.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 2000, filed with the Commission on May 15, 2000.
(c) The description of the Common Stock of the Company contained in a
registration statement filed on Form 8-A under the Securities and Exchange
Act (the "Exchange Act") filed on January 31, 2000, including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company 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 hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents. Any statement contained in any document, all
or a portion of which is incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained or 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.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law
("PBCL") provide that a business corporation may indemnify directors and
officers against liabilities they may incur as much provided that the particular
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 corporation, and, with respect
to any criminal proceeding, had no reasonable cause to believe his or her
conduct was unlawful. In general, the power to indemnify under these sections
does not exist in the case of actions against a director or officer by or in the
right of the corporation if the person otherwise entitled to indemnification
shall have been adjudged to be liable to the corporation unless it is judicially
determined that, despite the adjudication of liability but in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnification for specified expenses. Section 1743 of the PBCL provides that
the corporation is required to indemnify directors and officers against expenses
they may incur in defending actions against them in such capacities if they are
successful on the merits or otherwise in the defense of such actions.
Section 1713 of the PBCL permits the shareholders to adopt a bylaw
provision relieving a director (but not an officer) of personal liability for
monetary damages except where (i) the director has breached the applicable
standard of care, and (ii) such conduct constitutes self-dealing, willful
misconduct or recklessness. The statute provides that a director may not be
relieved of liability for the payment of taxes pursuant to any federal, state or
local law or responsibility under a criminal statute. Section 4.01 of the Bylaws
limits the liability of any director of the Company as permitted by Section 1713
of the PBCL.
Section 1746 of the PBCL grants a corporation broad authority to indemnify
its directors, officers and other agents for liabilities and expenses incurred
in such capacity, except in circumstances where the act or failure to act giving
rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness. Article VII of the Bylaws
provides indemnification of directors, officers and other agents of the Company
to the extent otherwise permitted by Section 1741 of the PBCL and pursuant to
the authority of Section 1746 of the PBCL.
Article VIII of the Bylaws provides indemnification for each person who was
or is made a party or is threatened to be made a party to or is otherwise
involved in (as a witness or otherwise) any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative and whether or not by or in the right of the Company or otherwise,
(hereinafter, a "proceeding") by reason of the fact that he or she is or was a
director or officer of the Company or is or was serving at the request of the
Company as a director, officer, employee, agent, fiduciary or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
entity or enterprise or where the basis of such proceeding is any alleged action
or failure to take any action by such person while acting in an official
capacity as a director or officer of the Company, or in any other capacity on
behalf of the Company while such
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person is or was serving as a director or officer of the Company, against
all expenses, liability and loss, including but not limited to attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement. Such indemnifiable liabilities include, but are not limited to,
liabilities resulting from any actual or alleged breach or neglect of duty,
error, misstatement or misleading statement, negligence, gross negligence or act
giving rise to strict or products liabilities, except (i) where the
indemnification is expressly prohibited by applicable law; (ii) where the
conduct of such person seeking indemnification has been finally determined
pursuant to arbitration under Section 7.06 of the Bylaws or otherwise: (a) to
constitute willful misconduct or recklessness within the meaning of Section 1746
of the PBCL, or (b) to be based upon or attributable to the receipt by such
individual from the corporation of a personal benefit to which such person is
not legally entitled; or (iii) to the extent the indemnification has been
finally determined in a final adjudication pursuant to Section 7.06 of the
Bylaws to be otherwise unlawful. In addition, the Company will not indemnify
directors and officers for any liability incurred in a proceeding initiated or
participated in as an intervenor or AMICUS CURIAE by the person seeking
indemnification unless the initiation of or participation in the proceeding is
authorized, either before or after its commencement by the affirmative vote of a
majority of the directors in office (excluding expenses applicable to
reimbursement of expenses incurred in successfully prosecuting or defending (i)
an arbitration under Section 7.06 of the Bylaws or (ii) the rights of a person
seeking indemnification granted under the Bylaws.)
Section 8.5 of the Bylaws also authorizes the Company to create a fund of
any nature, which may, but need not be, under the control of a trustee, or
otherwise secure or insure in any manner or arrangement as the Board of
Directors deems appropriate its indemnification obligations, including its
obligation to advance expenses, whether arising under or pursuant to Article VII
or otherwise. The Company maintains directors and officers insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this Registration
Statement.
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
4.1 Registrant's Equity Compensation Plan, as amended
on June 23, 2000
5.1 Opinion of Morgan Lewis & Bockius, LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Morgan Lewis & Bockius LLP (contained
in the opinion of counsel filed as Exhibit 5.1)
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:
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(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; 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) 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 Exchange Act 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 that remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
this 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 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 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 Bethlehem, Pennsylvania on August 4, 2000.
FASTNET CORPORATION
By: /s/ DAVID K. VAN ALLEN
----------------------------
David K. Van Allen
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Chief Executive Officer
/s/ DAVID K. VAN ALLEN (Principal Executive Officer) August 4, 2000
-----------------------
Chief Financial Officer
/s/ STANLEY F. BIELICKI (Principal Financial and
----------------------- Accounting Officer) August 4, 2000
/s/ SONNY C. HUNT Director August 4, 2000
----------------------
/s/ DOUGLAS L. MICHELS Director August 4, 2000
----------------------
/s/ R. BARRY BORDEN Director August 4, 2000
----------------------
/s/ DAVID J. FARBER Director August 4, 2000
----------------------
/s/ ALAN S. KESSMAN Director August 4, 2000
----------------------
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FASTNET CORPORATION
INDEX
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
4.1 Registrant's Equity Compensation Plan, as amended
on June 23, 2000
5.1 Opinion of Morgan Lewis & Bockius, LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Morgan Lewis & Bockius LLP (contained
in the opinion of counsel filed as Exhibit 5.1)
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