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As filed with the Securities and Exchange Commission on December 4, 2000
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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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DELAWARE 06-1555163
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
MCK COMMUNICATIONS, INC.
117 KENDRICK STREET
NEEDHAM, MASSACHUSETTS 02494
(617) 454-6100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
FULL TITLE OF THE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
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STEVEN J. BENSON
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND DIRECTOR
MCK COMMUNICATIONS, INC.
117 KENDRICK STREET
NEEDHAM, MASSACHUSETTS 02494
(617) 454-6100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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With copies to:
Sally Burke
MCK Communications, Inc.
117 Kendrick Street
Needham, Massachusetts 02494
(617) 454-6100
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Amounts to be Proposed Maximum Aggregate Offering Amount of
Registered Offering Price Per Share (1) Price(1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock issuable pursuant
to the 2000 Employee Stock 500,000 $5.6875 $2,843,750 $750.75
Purchase Plan
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</TABLE>
(1) The Proposed Maximum Offering Price Per Share and the Proposed Aggregate
Offering Price are based upon the average of the high and low prices for
the Registrant's Common Stock, par value $.001 per share, as reported on
the Nasdaq National Market on November 30, 2000, in accordance with Rules
457(h) and (c) under the Securities Act of 1933, as amended, and are
utilized solely for the purpose of calculating the registration fee.
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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)
Prospectus 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 CERTAIN DOCUMENTS BY REFERENCE.
MCK Communications, Inc. (the "Registrant") hereby incorporates by
reference the following documents which have previously been filed with
the Securities and Exchange Commission:
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended April 30, 2000 filed with the Securities and
Exchange Commission on July 31, 2000 (File No. 000-32090);
(b) all other reports filed with the Securities and Exchange
Commission by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since April 30, 2000; and
(c) the description of the Registrant's Common Stock contained in
the Registration Statement on Form 8-A dated October 18, 1999
as filed with the Securities and Exchange Commission on
October 18, 1999 pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended.
In addition, all documents subsequently filed with the Securities and
Exchange 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.
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 ("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 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 directors,
officers and certain non-officer employees (including officers and certain
non-officer employees of subsidiaries) 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 a director, an
officer or an employee of the Registrant, or is acting in any capacity with
other entities at the written request 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.
Under Section 7 of the Underwriting Agreement filed as Exhibit 1.1 to
the MCK Communications, Inc. Registration Statement on Form S-1 (File No.
333-85821), the Underwriters 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.
The Company carries directors' and officers' liability insurance
covering its directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
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The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
EXHIBITS
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5.1 Opinion of McDermott, Will & Emery as to the legality of the
securities being offered
23.1 Consent of McDermott, Will & Emery (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Powers of Attorney (included on signature pages to this
Registration Statement)
99.1 2000 Employee Stock Purchase Plan of the Registrant
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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 acts 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 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 twenty
percent (20%) 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 Registration Statement is on Form S-3, Form S-8 or
Form F-3, and 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 (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.
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Pursuant to the requirements of the Securities Act, MCK Communications,
Inc. 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 Newton, Massachusetts on November 30, 2000.
MCK Communications, Inc.
By: /s/ Steven J. Benson
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Steven J. Benson
Chairman, Chief Executive Officer
and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints each of Steven J. Benson and Paul K.
Zurlo such person's true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution for such period 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 with 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.
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SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Steven J. Benson Chairman of the Board, (Chief Executive November 30, 2000
------------------------- Officer, President, Chairman and Director)
Steven J. Benson
/s/ Paul K. Zurlo Chief Financial Officer (Principal Financial November 30, 2000
------------------------- and Accounting Officer)
Paul K. Zurlo
Director
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Calvin K. Manz
/s/ John B. Landry Director November 30, 2000
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John B. Landry
/s/ Gregory M. Avis Director November 30, 2000
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Gregory M. Avis
/s/ Michael H. Balmuth Director November 30, 2000
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Michael H. Balmuth
Director
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Paul Severino
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EXHIBIT INDEX
EXHIBITS
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5.1 Opinion of McDermott, Will & Emery as to the legality of the
securities being offered
23.1 Consent of McDermott, Will & Emery (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Powers of Attorney (included on signature pages to this Registration
Statement)
99.1 2000 Employee Stock Purchase Plan of the Registrant
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5
