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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 6, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CROSSCOMM CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 52-1513201
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
450 Donald Lynch Boulevard, Marlborough, MA 01752
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION PLAN
(Full title of the plan)
Philip P. Rossetti, Esq., c/o Hale and Dorr
60 State Street, Boston, Massachusetts 02109
(Name and address of agent for service)
(617) 526-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed Maximum
Securities Amount to Maximum Aggregate Amount of
to be be Offering Price Offering Registration
Registered Registered Per Share (1) Price (1) Fee (1)
- --------------------------------------------------------------------------------
Common Stock, 700,000 Shares $11.1796875 $7,825,781.25 $2,698.55
$.01 par value
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457(c) and (h) of the Securities Act of 1933, as
amended, and based on the average of the high and low prices of the Common
Stock on the National Association of Securities Dealers Automated Quotation
System's National Market System on June 3, 1996.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Part I is included in documents sent or
given to participants in the 1996 Stock Option Plan of CrossComm
Corporation (the "Registrant"), 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 Certain 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 following documents, which are on file with the
Securities and Exchange Commission, are incorporated in this Registration
Statement by reference:
(a) 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.
(b) 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
Registrant document referred to in (a) above.
(c) The description of the Common Stock, par value $.01 per share
("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 securities offered
hereby have been sold or which deregisters all such securities 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
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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 superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the authorization and issuance of the Common Stock
offered hereby will be passed upon for the Registrant by Hale and Dorr,
Boston, Massachusetts. Philip P. Rossetti, Secretary of the Company, is a
partner in the law firm of Hale and Dorr.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law enables a
Delaware corporation to provide in its certificate of incorporation, and
the Registrant has so provided in its Amended and Restated Certificate of
Incorporation, for the elimination or limitation of the personal liability
of a director to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, provided, however, that a
director's liability is not eliminated or limited: (1) for any breach of
the director's duty of loyalty to the corporation or its stockholders; (2)
for acts or omissions not in good faith or which involve an intentional
misconduct or a knowing violation of law; (3) pursuant to Section 174 of
the Delaware General Corporation Law (which imposes liability on directors
for unlawful payment of dividends or unlawful stock purchases or
redemptions); or (4) for any transaction from which the director derived an
improper personal benefit. The Amended and Restated Certificate of
Incorporation further provides that if the Delaware General Corporation Law
is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as amended.
Section 145 of the Delaware General Corporation Law empowers a
corporation to indemnify any person who was or is a party or witness or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that he or she is or was a director,
officer, employee or agent of the
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corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise.
Depending on the character of the proceeding, a corporation may indemnify
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in connection with such
action, suit or proceeding if the person indemnified 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 corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct
was unlawful. If the person indemnified is not wholly successful in such
action, suit or proceeding, but is successful, on the merits or otherwise,
in one or more but less than all claims, issues or matters in such
proceeding, he or she may be indemnified against expenses actually and
reasonably incurred in connection with each successfully resolved claim,
issue or matter. In the case of an action or suit by or in the right of the
corporation, no indemnification may be made in respect to any claim, issue
or matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine that
despite the adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 provides that to the extent a director, officer, employee or
agent of a corporation has been successful in the defense of any action,
suit or proceeding referred to above or in the defense of any claim, issue
or manner therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her
in connection therewith.
The Amended and Restated Certificate of Incorporation of the
Registrant provides that, to the fullest extent permitted by the Delaware
General Corporation Law, the Registrant shall indemnify any person who was
or is a party or is threatened to be made a party to any action, suit or
proceeding of the type described above by reason of the fact that he or she
is or was a director or officer of the Registrant or is or was serving at
the request of the Registrant as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise.
No expenses will be paid in advance, except as authorized by the Board of
Directors for expenses incurred while a director or officer was acting in
his or her capacity as a director or officer and upon the condition that
such director or officer previously delivered an undertaking to the
corporation to repay all amounts advanced if it should be later determined
that he or she was not entitled to indemnification. The Amended and
Restated Certificate of Incorporation of the Registrant further provides
that the above rights of indemnification are not
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exclusive of any other rights of indemnification that a director or officer
may be entitled to from any other source.
Article TENTH of the Registrant's Amended and Restated Certificate of
Incorporation sets forth the extent to which officers and directors of the
Registrant may be indemnified against liabilities which they may incur in
their capacities as directors or officers of the Registrant. Article TENTH
provides that the Registrant shall indemnify any 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 (other than an action by or in the rights
of the Registrant) by reason of the fact that he is or was a director or
officer of the Registrant, or is or was serving at the request of the
Registrant as a director, officer, or trustee of another corporation,
partnership, joint venture, trust or other enterprise (including any
employee benefit plan) against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Registrant, and, with respect to any
criminal action or proceedings, had no reasonable cause to believe his
conduct was unlawful. Such indemnification extends to suits brought by or
in the name of Registrant, except that no indemnification shall be
provided, in such case, with respect to any matter in which such person
shall have been adjudged to be liable, unless a court of appropriate
jurisdiction makes a determination that, despite the adjudication of
liability, in view of the circumstances, such person would be entitled to
be indemnified.
Article TENTH also provides that the Registrant may purchase and
maintain insurance on behalf of any director, officer, employee or agent of
the Registrant, or any person serving at the request of the Registrant as a
director, officer, employee or agent of another enterprise, against any
liability asserted against such person in such capacity, whether or not the
Registrant would have the power to indemnify such person. The
aforementioned indemnification and insurance provisions have been restated
in Article V of the Registrant's By-laws.
Article EIGHTH of the Registrant's Amended and Restated Certificate of
Incorporation provides that no director of the Registrant shall be liable
for monetary damages for breach of fiduciary duty, except for a breach of
any such director's duty of loyalty to the Registrant or its stockholders,
or for acts or omissions not in good faith or which involve inventional
misconduct or a knowing violation of law, or for acts prohibited under
Section 174 of the Delaware General Corporation Law, or for
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any transaction which such director derived an improper personal benefit.
The Registrant has entered into indemnification agreements with
certain of its directors. The indemnification agreements provide that the
Registrant shall indemnify and hold harmless the indemnitee to the fullest
extent permitted or authorized by applicable law. Indemnification under the
agreement extends to acts or omissions by the indemnitee while acting on
behalf of or at the request of the Registrant. Indemnification is required
to be made against any and all judgments, fines, amounts paid in settlement
and reasonable expenses (including attorneys' fees) actually incurred by
the indemnitee. Indemnification does not apply to any suit for an
accounting of profits made from the purchase or sale by the indemnitee of
securities of the Registrant pursuant to Section 16(b) of the Securities
Exchange Act of 1934 or similar provisions of any other federal, state or
other local law; or for conduct which is finally adjudged by a court of
appropriate jurisdiction to have been knowingly fraudulent, deliberately
dishonest or willful misconduct; or for actions of the indemnitee which
were outside the scope of the authority vested in the indemnitee by the
Registrant. The Registrant will advance expenses (including attorneys'
fees) incurred by the indemnitee in defending any proceeding and any
judgment, fine or amount to be paid in settlement of any proceeding upon
request form the indemnitee and receipt by the Registrant of an undertaking
give by the indemnitee providing that such indemnitee will repay the sums
advanced if it is ultimately determined the indemnitee was not entitled to
indemnification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
1. The Registrant hereby undertakes:
(a) 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;
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(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;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) of this
section 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 with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(b) 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.
(c) 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.
2. The 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 Section 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 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 in
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
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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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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 town of Marlborough, Massachusetts, on
this 5th day of June, 1996.
CROSSCOMM CORPORATION
By: /s/ William R. Johnson
--------------------------------
William R. Johnson, President
and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of CrossComm Corporation
hereby severally constitute and appoint William R. Johnson, Allan M. Kline
and Philip P. Rossetti, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us
and in our names, in the capacities indicated below, the Registration
Statement on Form S-8 filed herewith and any and all amendments to said
Registration Statement and generally to do all such things in our name and
behalf in our capacities as officers and directors to enable CrossComm
Corporation to comply with the provisions of the Securities Act, and all
requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys,
or any of them, to said Registration Statement and any and all amendments
thereto.
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WITNESS our hands and common seal on the date set forth below.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the date indicated.
Signature Title Date
/s/ William R. Johnson President and Chief ) June 5, 1996
------------------------ Executive Officer )
William R. Johnson )
(Principal Executive )
Officer) )
)
)
/s/ Allan M. Kline Senior Vice President and ) June 5, 1996
------------------------ Chief Financial Officer )
Allan M. Kline )
(Principal Financial )
Officer and Principal )
Accounting Officer) )
)
)
/s/ Nancy Casey Director ) June 5, 1996
------------------------
Nancy Casey )
)
)
)
/s/ Alexander M. Levine Director ) June 5, 1996
------------------------
Alexander M. Levine )
)
)
/s/ Michael C. Ruettgers Director ) June 5, 1996
------------------------
Michael C. Ruettgers )
)
)
/s/ Tadeusz Witkowicz Director ) June 5, 1996
------------------------
Tadeusz Witkowicz )
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EXHIBIT INDEX
Exhibit
Number
4.1 Amended and Restated Certificate of
Incorporation of the Registrant
(filed as Exhibit 4.1 to the Registrant's
Registration Statement on Form S-8
(File No. 33-82476) and incorporated
herein by reference.
4.2 By-Laws, as amended, of the Registrant
(filed as Exhibit 3.3 to the Registrant's
Registration Statement on Form S-1
(File No. 33-47321 and incorporated
herein by reference)
5.1 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included in the
signature pages of this Registration
Statement)
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Exhibit 5.1
June 5, 1996
CrossComm Corporation
450 Donald Lynch Boulevard
Marlborough, MA 01752
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to 700,000 shares of Common Stock, $.01 par
value per share (the "Shares"), of CrossComm Corporation, a Delaware
corporation (the "Company"), issuable under the Company's 1996 Stock Option
Plan (the "Plan").
We have examined the Amended and Restated Certificate of Incorporation
and the By-Laws of the Company, and all amendments thereto, the Registration
Statement and originals, or copies certified to our satisfaction of such
records of meetings, written actions in lieu of meetings, or resolutions
adopted at meetings, of the directors of the Company, and such other
documents and instruments as in our judgment are necessary or appropriate to
enable us to render the opinions expressed below.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as copies, and the authenticity of the originals
of all such documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares covered by the Registration Statement to be issued under the Plan
have been duly and validly authorized for issuance, and when issued and paid
for in accordance with the terms of the Plan, will be legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an Exhibit to the Registration Statement.
Very truly yours,
/s/ Hale and Dorr
HALE AND DORR
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Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1996 Stock Option Plan of CrossComm Corporation of our
report dated January 31, 1996, with respect to the consolidated financial
statements and schedule of CrossComm Corporation included in its Annual Report
(Form 10-K) for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
May 31, 1996
