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As filed with the Securities and Exchange Commission on August 14, 1998
REGISTRATION NO. 333-
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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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OPENROUTE NETWORKS, INC.
(FORMERLY, PROTEON, INC.)
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2531856
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
NINE TECHNOLOGY DRIVE
WESTBOROUGH, MASSACHUSETTS 01581
(508) 898-2800
(Address of Principal Executive Offices)
OPENROUTE NETWORKS, INC. 1991 RESTATED STOCK OPTION PLAN
(Full title of the plan)
BRYAN R. HOLLEY, PRESIDENT
OPENROUTE NETWORKS, INC.
NINE TECHNOLOGY DRIVE
WESTBOROUGH, MASSACHUSETTS 01581
(508) 898-2800
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of Amount to be offering price aggregate Amount of
securities to be registered registered(1) per share(2) offering price(2) registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 500,000 $1.20 $600,000 $177.00
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(1) The number of shares of common stock, par value $.01 per share ("Common
Stock"), stated above consists of the aggregate number of additional shares
not previously registered which may be sold upon the exercise of options
which may hereafter be granted under the OpenROUTE Networks, Inc. 1991
Restated Stock Option Plan (the "Plan"). The maximum number of shares which
may be sold under the Plan is subject to adjustment in accordance with
certain anti-dilution and other provisions of the Plan. Accordingly,
pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement covers, in addition to the
number of shares stated above, an indeterminate number of shares which may
be subject to grant or otherwise issuable after the operation of any such
anti-dilution and other provisions.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the
Securities Act as follows: Since no additional options have been granted
under the Plan, the fee is calculated on the basis of the average of the
high and low sale prices per share of the Common Stock on The Nasdaq Stock
Market ("Nasdaq") as of a date (August 13, 1998) within 5 business days
prior to filing this Registration Statement.
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EXPLANATORY NOTE
This Registration Statement relates to the registration of 500,000
additional shares of Common Stock authorized for issuance under the Plan. In
accordance with the instructional Note to Part I of Form S-8 as promulgated by
the Securities and Exchange Commission, the information specified by Part I of
Form S-8 has been omitted from this Registration Statement on Form S-8 for
offers of Common Stock pursuant to the Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998.
(c) The Company's Current Reports on Form 8-K filed with the Commission on
June 16, 1998 and July 10, 1998.
(d) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A (File No. 0-19175), filed under the
Securities Exchange Act of 1934, including any amendment or report filed for the
purpose of updating such description.
All reports and other documents filed by the Registrant after the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 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 reports
and 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.
Incorporated herein by reference from Registration Statement on Form S-1,
No. 33-40073.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
(4.1) Article 4 of Restated Articles of Organization, as Amended
(Filed as Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1991, and
incorporated herein by reference).
(4.2) By-Laws, as amended and restated (Filed as Exhibit 3.3 to the
Registrant's Registration Statement on Form S-1, Registration
No, 33-40073, and incorporated herein by reference).
(4.3) Form of Common Stock Certificate (Filed as Exhibit 4.2 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 29, 1996, and incorporated herein by
reference).
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. as to the legality of shares being registered.
(23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. (included in opinion of counsel filed as Exhibit 5).
(23.2) Consent of PricewaterhouseCoopers LLP.
(24) Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement).
(99.1) OpenROUTE Networks, Inc. 1991 Restated Stock Option Plan
(filed as Exhibit 19.1 to the Registrant's Quarterly Report on
Form 10-Q for the fiscal quarter ended June 27, 1992, and
incorporated herein by reference).
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, represents a fundamental change in the information set
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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 maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) (Section
230.424(b) of this chapter) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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-3 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
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 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 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 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,
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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, 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 August 11, 1998.
OPENROUTE NETWORKS, INC.
By: /s/ Steven T. Shedd
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Steven T. Shedd,
Chief Financial Officer
Each person whose signature appears below constitutes and appoints Steven
T. Shedd 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, and
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 of
OpenROUTE Networks, Inc. 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 agent, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in or about the premises, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-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.
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Signature Title Date
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By: /s/ Bryan R. Holley Director, President, August 10, 1998
- ------------------------------------ Chief Executive Officer
Bryan R. Holley (principal executive officer)
By: /s/ Steven T. Shedd Chief Financial Officer August 11, 1998
- ------------------------------------ (principal financial and accounting
Steven T. Shedd officer)
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By: /s/ Robert M. Glorioso Director August 12, 1998
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Robert M. Glorioso
By: /s/ Thomas R. Liebermann Director August 13, 1998
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Thomas R. Liebermann
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OPENROUTE NETWORKS, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
Exhibit
Number Description
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4.1 Article 4 of Restated Articles of Organization, as Amended (Filed as
Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1991, and incorporated herein by
reference).
4.2 By-Laws, as amended and restated (Filed as Exhibit 3.3 to the
Registrant's Registration Statement on Form S-1, Registration No,
33-40073, and incorporated herein by reference).
4.3 Form of Common Stock Certificate (Filed as Exhibit 4.2 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 29, 1996, and incorporated herein by reference).
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to
the legality of shares being registered.
23.1 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.(included in opinion of counsel filed as Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement).
99.1 OpenROUTE Networks, Inc. 1991 Restated Stock Option Plan (filed as
Exhibit 19.1 to the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 27, 1992, and incorporated herein by
reference).
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EXHIBIT 5
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000
Washington, D.C. 20004 Fax: 617/542-2241
Telephone: 202/434-7300 www.mintz.com
Fax: 202/434-7400
August 10, 1998
OpenROUTE Networks, Inc.
Nine Technology Drive
Westborough, Massachusetts 01581
Gentlemen:
We have acted as counsel to OpenROUTE Networks, Inc., a Massachusetts
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"), pursuant to which the Company is registering the
issuance under the Securities Act of 1933, as amended, of a total of 500,000
shares (the "Shares") of its common stock, $.01 par value per share (the "Common
Stock"). This opinion is being rendered in connection with the filing of the
Registration Statement. All capitalized terms used herein and not otherwise
defined shall have the respective meanings given to them in the Registration
Statement.
In connection with this opinion, we have examined the Company's Restated
Articles of Organization, as amended, and Restated By-Laws, as amended, both as
currently in effect; such other records of the corporate proceedings of the
Company and certificates of the Company's officers as we have deemed relevant;
and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such copies.
Based upon the foregoing, we are of the opinion that (i) the Shares have
been duly and validly authorized by the Company and (ii) the Shares, when sold,
will have been duly and validly issued, fully paid and non-assessable shares of
the Common Stock, free of preemptive rights.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
August 10, 1998
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Our opinion is limited to Massachusetts law, and we express no opinion with
respect to the laws of any other jurisdiction. No opinion is expressed herein
with respect to the qualification of the Shares under the securities or blue
sky laws of any state or any foreign jurisdiction.
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8 of
our reports dated February 11, 1998, on our audits of the consolidated financial
statements and financial statement schedule of OpenROUTE Networks, Inc. as of
December 31, 1997 and 1996, and for each of the three years in the period ended
December 31, 1997, which reports have been included in the 1997 Annual Report on
Form 10-K.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
August 12, 1998
