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
OPENROUTE NETWORKS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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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Title of Proposed Proposed Amount
Securities Amount Maximum Maximum of
To Be To Be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 600,000 $2.59375 $1,556,250 $432.64
$.01 par value
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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 and the OpenROUTE Networks, Inc. Employee
Stock Purchase Plan(the "Plans"). The maximum number of shares which may
be sold under the Plans 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: as the future exercise price of options not
yet granted under the plans is not known, 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
(October 18, 1999) within 5 business days prior to filing this
Registration Statement.
Pursuant to Rule 429 under the Securities Act, the Prospectus or other
documents containing the information specified in Part I of Form S-8 with
respect to the securities covered by this Registration Statement are to be
used in connection with securities previously registered on Form S-8 under
Registration Numbers 333-61545, 333-31055, 33-85524, 33-41702 and 33-41228.
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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, and the Note to Part I of Form S-8.
Pursuant to General Instruction E on Form S-8 regarding the registration
of additional securities, OpenROUTE Networks, Inc. (the "Company")hereby is
registering additional shares of Common Stock, in the number set forth on the
cover page of this Registration Statement. Such shares are of the same class
as other securities of the Company for which previous registration statements
have been filed with the Securities and Exchange Commission (the "Commission")
relating to the Plans, and such registration statements, as listed below, are
incorporated by reference herein:
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 33-41228 (filed on June 17,1991);
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 33-41702 (filed on July 17, 1991);
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 33-85524 (filed on October 21, 1994);
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 333-31055 (filed on July 10, 1997);
and
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 333-61545 (filed on August 14, 1998).
Pursuant to Rule E, this Registration Statement contains such information
required by Form S-8 that is not otherwise included in the above-listed
registration statements.
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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 Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
(c) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
(d) The Company's Proxy Statement on Schedule 14A for the Company's 1999
Annual Meeting of Shareholders.
(e) The Company's Current Report on Form 8-K filed with the Commission on
January 20, 1999.
(e) The Company's Current Report on Form 8-K/A filed with the Commission
on February 24, 1999.
(e) The Company's Current Report on Form 8-K filed with the Commission on
August 30, 1999.
(e) The Company's Current Report on Form 8-K filed with the Commission on
October 13, 1999.
(f) 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 BDO Seidman, 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).
99.2 OpenROUTE Networks,Inc. Employee Stock Purchase Plan, as
amended (filed as Exhibit 28.1 to the Registration Statement
on Form S-8, Registration No. 33-41702, 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,
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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, 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 October 18, 1999.
OPENROUTE NETWORKS, INC.
By: /s/ Henry Barber
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Henry Barber,
Chief Financial Officer
Each person whose signature appears below constitutes and appoints Henry
Barber 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.
Signature Title Date
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By: /s/ Bryan R. Holley Director, President, October 18, 1999
--------------------- Chief Executive Officer
Bryan R. Holley (principal executive officer)
By:/s/ Henry Barber Chief Financial Officer October 18, 1999
-------------------- (principal financial and
Henry Barber accounting officer)
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By: /s/ Robert M. Glorioso Director October 18, 1999
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Robert M. Glorioso
By: /s/ Thomas R. Liebermann Director October 18, 1999
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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 BDO Seidman, 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).
99.2 OpenROUTE Networks,Inc. Employee Stock Purchase Plan, as
amended (filed as Exhibit 28.1 to the Registration Statement
on Form S-8, Registration No. 33-41702, 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
October 6, 1999
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 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 600,000
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.
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.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
OpenROUTE Networks, Inc.
October 6, 1999
Page 2
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.
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
OpenROUTE Networks, Inc.
Westborough, Massachusetts
We hereby consent to the inclusion in the Registration Statement on Form S-8
of our report dated February 12, 1999 on the consolidated balance sheet of
OpenROUTE Networks, Inc. and subsidiaries as of December 31, 1998 and the
related consolidated statements of operations, stockholders' equity and cash
flows for the year then ended.
/s/ BDO Seidman, LLP
Boston, Massachusetts
October 18, 1999
