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As filed with the Securities and Exchange Commission on September 15, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEON COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3523408
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2200 WEST PARK DRIVE
WESTBOROUGH, MA 01581 01581
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1998 STOCK INCENTIVE PLAN
(Full Title of the Plan)
VICTOR COLANTONIO, PRESIDENT
NEON COMMUNICATIONS, INC.
2200 WEST PARK DRIVE
WESTBOROUGH, MA 01581
(Name and Address of Agent for Service)
(508) 616-7800
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share Price Registration Fee
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 4,453,276 shares $36.36(1) $161,921,115(1) $42,750
$0.01 per share
=====================================================================================================================
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(1) For purposes of computing the registration fee only. Pursuant to Rule
457(c) and Rule 457(h) under the Securities Act of 1933, as amended,
the Proposed Maximum Offering Price Per Share is based upon (i) with
respect to 1,890,937 shares that may be acquired pursuant to stock
options granted by NEON Communications, Inc. (the "Company") under the
Company's Amended and Restated 1998 Stock Incentive Plan, as amended
(the "Option Plan") prior to the date of this Registration Statement,
the actual price at which such stock options may be exercised; and (ii)
with respect to the remaining 2,562,339 shares that may be acquired
pursuant to stock options that may be granted by the Company under the
Option Plan from time to time after the date hereof, $39.94 per share,
which represents the average of the high and low prices reported on the
Nasdaq Stock Market for shares of the Common Stock on September 14,
2000.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents
sent or given to participants in the Registrant's 1998 Amended and Restated
Stock Incentive Plan, as amended, pursuant to Rule 428(b)(1) of the Securities
Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
document referred to in (1) above.
(3) The description of the Common Stock of the Registrant,
$.001 par value per share (the "Common Stock"), contained in a
registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed 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 which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be 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 herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or
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superseded, to constitute a part of this Registration Statement. References in
this Item 3 to the Registrant shall be deemed to mean NEON Communications, Inc.,
and with respect to reports or prospectuses filed prior to September 14, 2000,
its predecessor, NorthEast Optic Network, Inc.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock being offered hereby will be
passed upon for the Registrant by Hale and Dorr LLP, Boston, Massachusetts.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional misconduct or
knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit. We have included such a provision in our Certificate of
Incorporation.
Section 145 of the Delaware General Corporation Law provides
that a corporation has the power to indemnify a director, officer, employee or
agent of the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he or she is, or is threatened
to be made a party by reason of such position, if such person shall have acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal proceeding, if such
person had no reasonable cause to believe his conduct was unlawful; provided
that, in the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Our Certificate of Incorporation provides that we will, to the fullest
extent permitted by Delaware law, 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 investigative, by
reason of the fact
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that he or she is or was, or has agreed to become, a director or officer of our
company, or is or was serving, or has agreed to serve, at our request, as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise, 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 or on behalf of a person seeking
indemnification in connection with such action, suit or proceeding and any
appeal therefrom.
As a prerequisite to indemnification under our Certificate of
Incorporation, the person seeking indemnification must notify us in writing as
soon as practicable of any action, suit, proceeding or investigation involving
him or her for which indemnification will or could be sought. With respect to
any action, suit, proceeding or investigation of which we are so notified, we
will be entitled to participate therein at our own expense and/or to assume the
defense of the action at our own expense, with legal counsel reasonably
acceptable to the person seeking indemnification.
If we do not choose to assume the defense of an action for which we
have received notice, we generally will pay in advance of the final disposition
of such matter any expenses (including attorneys' fees) incurred by a party
seeking indemnification in defending a civil or criminal action, suit,
proceeding or investigation or any appeal therefrom; provided, however, that the
payment of such expenses incurred before the final disposition of such matter
shall be made only upon receipt of an undertaking by the person seeking
indemnification to repay all amounts so advanced in the event that it shall
ultimately be determined that the person seeking indemnification is not entitled
to be indemnified by us under our Certificate of Incorporation.
Our Certificate of Incorporation does not require us to indemnify any
person seeking indemnification in connection with a proceeding initiated by such
person unless such initiation was approved by our Board of Directors. In
addition, we will not indemnify any person to the extent such person is
reimbursed from the proceeds of an insurance reimbursement. We have purchased
directors' and officers' liability insurance which would indemnify our directors
and officers against damages arising out of certain kinds of claims which might
be made against them based on their negligent acts or omissions while acting in
their capacity as officers or directors, as the case may be.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. UNDERTAKINGS
1. The 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 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 (i) and (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 with or furnished to the Commission by the Registrant
pursuant to Section 13 or 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.
(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.
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2. 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.
3. 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 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Westborough, Massachusetts on September 15, 2000.
NEON Communications, Inc.
By: /s/Victor Colantonio
--------------------------------
Victor Colantonio, President
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and appoints John
H. Forsgren, Victor Colantonio, and William F. Fennell as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, to
sign any or all further amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission granting unto 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 he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
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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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Signatures Title Date
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<S> <C> <C>
Chairman of the Board and Chief Executive
/s/ John H. Forsgren Officer (Principal Executive Officer) September 15, 2000
-------------------------------
John H. Forsgren
Chief Financial Officer, Treasurer and Vice
President (Principal Financial and Accounting
/s/ William F. Fennell Officer) September 15, 2000
-------------------------------
William F. Fennell
/s/ Victor Colantonio Vice Chairman of the Board and President September 15, 2000
------------------------------
Victor Colantonio
Director September __, 2000
-------------------------------
Katherine Dietze Courage
/s/ F. Michael McClain Director September 15, 2000
------------------------------
F. Michael McClain
/s/ Peter A. Rust Director September 14, 2000
-----------------------------
Peter A. Rust
Director September __, 2000
-----------------------------
Robert A. Shinn
/s/ Gary D. Simon Director September 15, 2000
-----------------------------
Gary D. Simon
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Specimen Certificate for Common Stock of the Registrant
(incorporated by reference to Exhibit 4.01 of our Registration
Statement on Form S-4, Registration No. 333-38600).
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included in the signature pages of this
Registration Statement)
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