<PAGE> 1
As filed with the Securities and Exchange Commission on March 7, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NET2000 COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 51-0384995
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization)
2180 FOX MILL ROAD
HERNDON, VIRGINIA 20171
(Address of principal executive offices) (Zip Code)
</TABLE>
NET2000 GROUP, INC. 1997 EQUITY INCENTIVE PLAN
NET2000 COMMUNICATIONS, INC. 1999 STOCK INCENTIVE PLAN
(Full title of plans)
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<S> <C>
(Name, address and telephone
number of agent for service) (Copy to:)
LEE WEINER, ESQUIRE NANCY A. SPANGLER, ESQUIRE
SENIOR VICE PRESIDENT AND GENERAL COUNSEL PIPER MARBURY RUDNICK & WOLFE LLP
NET2000 COMMUNICATIONS, INC. 1850 CENTENNIAL PARK DRIVE, SUITE 610
2180 FOX MILL ROAD COMMERCE PARK III
HERNDON, VIRGINIA 20171 RESTON, VIRGINIA 20191
(703) 654-2010 (703) 390-5240
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE OFFERING AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER UNIT (3) OFFERING PRICE (3) FEE (3)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 8,748,388 (1)(2) $20.00 $174,967,760 $46,191
===================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate number of shares of Common
Stock that may be offered or issued by reason of stock splits, stock dividends
or similar transactions.
(2) 4,373,388 shares are issuable with respect to the 1997 Equity Incentive Plan
and 4,375,000 shares are issuable with respect to the 1999 Stock Incentive Plan.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457. The proposed maximum offering price per share, proposed maximum
aggregate offering price and the amount of the registration fee are based on the
initial public offering price of Net2000 Communications, Inc. Common Stock on
March 7, 2000.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be included in this Form S-8 Registration Statement pursuant to
introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by the Registrant with
the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) Prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933 (in connection with Registrant's Registration
Statement on Form S-1, as amended, filed on December 2, 1999
(File No. 333-91987));
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, ("Exchange
Act") since the end of the fiscal year covered by the document
referred to in (a) above; and
(c) Description of Common Stock of the Registrant contained or
incorporated in the registration statements filed by the
Registrant under the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
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 have been sold or which deregisters all securities remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part of this Registration Statement from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the General Corporation Law of Delaware ("GCLD"),
Article Tenth of the Amended and Restated Certificate of Incorporation (the
"Certificate") of Net2000 Communications, Inc. (the "Corporation") provides for
indemnification of directors and officers of the Corporation, as follows:
The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of Delaware, as amended from time to
time, indemnify each person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
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<PAGE> 3
investigative, by reason of the fact that he is or was, or has agreed
to become, a director or officer of the Corporation, or is or was
serving, or has agreed to serve, at the request of the Corporation, as
a director, officer or trustee of, or in a similar capacity with,
another corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any
appeal therefrom.
Also, the Corporation's Amended and Restated By-Laws contain
indemnification procedures that implement the indemnification provisions of the
Amended and Restated Certificate of Incorporation. The GCLD permits a
corporation to indemnify its directors and officers, among others, against
judgments, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceedings to which they may be a party by reason of
their service in those or other capacities, if such person acted in good faith
and in a manner which such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and with respect to any criminal action
or proceedings, had no reasonable cause to believe that such conduct was
unlawful.
As permitted by the GCLD, Article Ninth of the Corporation's
Certificate provides for limitation of liability of directors of the
Corporation, as follows:
A director of the Corporation shall not be personally liable to the
Corporation 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 Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involved intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE> 4
ITEM 8. EXHIBITS.
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated by reference
to the Company's Registration Statement on Form S-1, as amended (File No.
333-91987))
4.2 Amended and Restated By-Laws (incorporated by reference to the Company's
Registration Statement on Form S-1, as amended (File No. 333-91987))
4.3 1997 Equity Incentive Plan (incorporated by reference to the Company's
Registration Statement on Form S-1, as amended (File No. 333-91987))
4.4 1999 Stock Incentive Plan (incorporated by reference to the Company's
Registration Statement on Form S-1, as amended (File No. 333-91987))
5.0 Opinion of Piper Marbury Rudnick & Wolfe LLP, counsel for the Registrant,
regarding the legal validity of the shares of Common Stock being registered
for issuance under the Plans (filed herewith)
23.1 Consent of Counsel (contained in Exhibit 5.0)
23.2 Consent of Independent Auditors (filed herewith)
24.0 Power of Attorney (filed herewith)
</TABLE>
ITEM 9. UNDERTAKINGS.
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 this 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.
Paragraphs (l)(i) and (l)(ii) above 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 Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
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<PAGE> 5
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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 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 City of Herndon, Commonwealth of Virginia, on the 7th
day of March, 2000.
NET2000 COMMUNICATIONS, INC.
By: /s/ Clayton A. Thomas, Jr.
---------------------------------
Clayton A. Thomas, Jr.
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Clayton A. Thomas, Jr. Chairman of the Board and Chief Executive Officer March 7, 2000
- ------------------------- (Principal Executive Officer)
Clayton A. Thomas, Jr.
/s/ Donald E. Clarke Executive Vice President, Chief Financial March 7, 2000
- -------------------- Officer and Treasurer
Donald E. Clarke (Principal Financial and Accounting Officer)
</TABLE>
A majority of the Board of Directors (Clayton A. Thomas, Jr., Clyde
Heintzelman, Peter B. Callowhill, Eric Geis, Reid Miles and Mitchell Reese).
Date: March 7, 2000 By: /s/ Nancy A. Spangler
---------------------
Nancy A. Spangler Attorney-In-Fact
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<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated by reference
to the Company's Registration Statement on Form S-1, as amended (File No.
333-91987))
4.2 Amended and Restated By-Laws (incorporated by reference to the Company's
Registration Statement on Form S-1, as amended (File No. 333-91987))
4.3 1999 Equity Incentive Plan (incorporated by reference to the Company's
Registration Statement on Form S-1, as amended (File No. 333-91987))
4.4 1999 Stock Incentive Plan (incorporated by reference to the Company's
Registration Statement on Form S-1, as amended (File No. 333-91987))
5.0 Opinion of Piper Marbury Rudnick & Wolfe LLP, counsel for the Registrant,
regarding the legal validity of the shares of Common Stock being registered
for issuance under the Plans (filed herewith)
23.1 Consent of Counsel (contained in Exhibit 5.0)
23.2 Consent of Independent Auditors (filed herewith)
24.0 Power of Attorney (filed herewith)
</TABLE>
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<PAGE> 1
EXHIBIT 5.0
[PIPER MARBURY RUDNICK & WOLFE LLP LOGO]
Suite 610, Commerce Executive Park III
1850 Centennial Park Drive
Reston, Virginia 20191-1517
www.piperrudnick.com
PHONE (703) 391-7100
FAX (703) 390-5299
March 7, 2000
Net2000 Communication, Inc.
2180 Fox Mill Road
Herndon, Virginia 20171
Ladies and Gentlemen:
We have acted as counsel to Net2000 Communications, Inc., a Delaware
Corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of a registration statement on Form S-8
(the "Registration Statement") registering 8,748,388 shares of Common Stock, par
value $.01 per share, issuable pursuant to the exercise of options granted under
the 1997 Equity Incentive Plan and 1999 Stock Incentive Plan (collectively, the
"Plan Shares").
We have examined copies of the Company's Amended and Restated
Certificate of Incorporation, Amended and Restated By-Laws, the Plans, all
resolutions adopted by the Company's Board of Directors relating to the above
and other records and documents that we have deemed necessary for the purpose of
this opinion. We have also examined such other documents, papers, statutes and
authorities as we have deemed necessary to form a basis for this opinion. In our
examination, we have assumed the genuineness of all signatures and the
conformity to original documents of all copies submitted to us. As to various
questions of fact material to this opinion, we have relied on statements and
certificates of officers and representatives of the Company and others.
Based upon the foregoing, we are of the opinion that Plan Shares
issuable under the Plans have been duly authorized and will be (when issued,
sold and delivered as authorized) validly issued, fully paid and non-assessable.
The opinions set forth herein are limited to matters governed by the
laws of the State of Delaware and the Federal Laws of the United States of
America, and we express no opinion as to any other laws.
We hereby consent to the filing of this opinion as Exhibit 5.0 to the
Registration Statement.
Very truly yours,
/s/ Piper Marbury Rudnick & Wolfe LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 333- ) pertaining to the Net2000 Communications, Inc.
1997 Equity Incentive Plan and pertaining to the Net2000 Communications, Inc.
1999 Stock Incentive Plan for the registration of 8,748,388 shares of its common
stock, of our report dated January 26, 2000, included in the Registration
Statement (Form S-1 No. 333-91987) and related Prospectus of Net2000
Communications, Inc. filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
McLean, Virginia
March 6, 2000
<PAGE> 1
EXHIBIT 24.0
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Officers and
Directors of Net2000 Communications, Inc., a Delaware corporation (the
"Corporation"), hereby constitute and appoint Clayton A. Thomas, Jr., Donald E.
Clarke and Nancy A. Spangler, and each of them, the true and lawful agents and
attorneys-in-fact of the undersigned with full power and authority in said
agents and attorneys-in-fact, and in any one or more of them, to sign for the
undersigned and in their respective names as Officers and as Directors of the
Corporation, a Registration Statement on Form S-8 (or other appropriate form)
relating to the proposed issuance of Common Stock and other securities pursuant
to the exercise of stock options granted under the 1997 Equity Incentive Plan
and the 1999 Stock Incentive Plan (or any and all amendments, including
post-effective amendments, to such Registration Statement) and file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and with full power of substitution; hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Clayton A. Thomas, Jr. Chairman of the Board of Directors and Chief March 7, 2000
- -------------------------- Executive Officer
Clayton A. Thomas, Jr. (Principal Executive Officer)
/s/ Clyde Heintzelman President and Director March 7, 2000
- ---------------------
Clyde Heintzelman
/s/ Peter B. Callowhill Director March 7, 2000
- -----------------------
Peter B. Callowhill
/s/ Eric Geis Director March 7, 2000
- -------------
Eric Geis
/s/ Reid Miles Director March 7, 2000
- --------------
Reid Miles
/s/ Mitchell Reese Director March 7, 2000
- ------------------
Mitchell Reese
</TABLE>
