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As filed with the Securities and Exchange Commission
on June 22, 2000
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ePRESENCE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts 04-2798394
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
120 Flanders Road, Westboro, Massachusetts 01581
(Address of Principal Executive Offices) (Zip Code)
DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
Kevin F. Newman, Esq.
ePresence, Inc.
120 Flanders Road
Westboro, Massachusetts 01581
(Name and Address of Agent For Service)
(508) 898-1000
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of securities to be Amount to be Proposed maximum Amount of
registered registered aggregate offering registration
price fee
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<S> <C> <C> <C>
Deferred Compensation $5,000,000 (2) $5,000,000 (2) $1,320
Obligations (1)
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</TABLE>
(1) The Registrant is registering Deferred Compensation Obligations that are
unsecured obligations of the Registrant to pay deferred compensation in the
future in accordance with the terms of the ePresence, Inc. Deferred
Compensation Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended.
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EXPLANATORY NOTE
This registration statement has been prepared in accordance with the
requirements of Form S-8 and relates to the Registrant's Deferred Compensation
Obligations incurred by the Registrant, pursuant to the Registrant's Deferred
Compensation Plan.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"), the information required by Part I is included in documents
which will be sent or given to participants in the Registrant's Deferred
Compensation Plan.
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, $0.01 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 superseded,
to constitute a part of this Registration Statement.
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Item 4. Description of Securities.
Under the Registrant's Deferred Compensation Plan (the "Plan"), the
Registrant will provide a select group of highly compensated and management
employees (the "Eligible Employees") and directors (the "Directors") the
opportunity to enter into agreements for the deferral of a specified percentage
of their cash compensation. The obligations of the Registrant under such
agreements (the "Obligations") will be unfunded and unsecured general
obligations of the Registrant to pay in the future the value of the deferred
compensation adjusted to reflect the performance, whether positive or negative,
of investment measurement options chosen by each participant from those
measurement options made available under the Plan during the deferral period in
accordance with the terms of the Plan.
The Plan will be administered by the members of the Administrative
Committee (the "Committee") and the Board of Directors of the Registrant. The
Board of Directors may amend the Plan, but no amendment may reduce any benefit
that has accrued on the effective date of the amendment.
An Eligible Employee may elect to defer up to 100% of his or her bonus
compensation and any Director may elect to defer up to 100% of any retainer or
fees that the Registrant may become obligated to pay during or for any Plan
year.
The Obligations for each participant will equal the balance in a record-
keeping account established for such participant. The investment earnings
credited to such account will be indexed to one or more investment indices, the
type of which will be individually chosen by each participant from a list of
types of investment indices made available under the Plan, including an index
tied to the performance of the Registrant's Common Stock. Each participant's
record-keeping account will be adjusted to reflect contributions by the
Registrant and the investment experience of the selected investment index,
including any appreciation or depreciation. The Registrant is not required to
actually invest the deferred compensation in the types of investment indices
specified by the participants.
The Obligations will be distributed by the Registrant in accordance with
the terms of the Plan as follows: (i) in the event the participant retires,
becomes disabled or dies after retirement has commenced, the participant will
receive annual installments over a period of up to 15 years, and (ii) in the
event of the participant's death or termination of employment prior to
retirement or disability, the participant or the participant's estate will
receive a lump-sum distribution. Upon a determination by the Committee that a
participant has suffered an unforeseeable financial hardship, the Committee may
direct the Registrant to pay such participant an amount necessary to meet the
emergency, but not exceeding the sum equal to the total deferred amounts,
subject to earnings adjustments, plus the vested portion of any corporate
contributions, subject to earnings adjustments. Commencing with the year
beginning January 2006, at the time a participant elects to defer income in
accordance with the Plan, the participant may also elect to receive a portion
the Obligations due to that participant in either a lump sum or spread out over
a period of four years.
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Neither participants, designated beneficiaries nor any other beneficiary
under the Plan may transfer, assign, anticipate, hypothecate or otherwise
encumber any part or all of the amounts payable under the Plan. No Obligation
may be subject to seizure by any creditor of any beneficiary, nor shall such
amounts be transferable by operation of law in the event of bankruptcy,
insolvency or death of a participant, designated beneficiary, or any other
beneficiary under the Plan. If at any time a participant becomes entitled to
benefits under the Plan and such participant has any debt or obligation owed to
the Registrant, the Registrant may offset the amount owed by the participant
against the amount of benefits otherwise distributable to the participant under
the Plan.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws ("Section 67")
provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization, (ii) a
by-law adopted by the stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. In its Second Amended
and Restated Articles of Organization, the Registrant has elected to commit to
provide indemnification to its directors and officers in specified
circumstances. Generally, Article 6 of the Registrant's Second Amended and
Restated Articles of Organization indemnifies directors and officers of the
Registrant against liabilities and expenses arising out of legal proceedings
brought against them by reason of their status or service as directors or
officers or by reason of their agreeing to serve, at the request of the
Registrant, as a director or officer of, or in a similar capacity with, another
organization or in any capacity with respect to any employee benefit plan of the
Registrant. Under this provision, a director or officer of the Registrant shall
be indemnified by the Registrant for all expenses, judgments, fines and amounts
paid in settlement of such proceedings, even if he or she is not successful on
the merits, if he or she acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the Registrant.
The Registrant's Second Amended and Restated Articles of Organization
establish the presumption that the director or officer has met the applicable
standard of conduct required for indemnification. The indemnification above
shall be made unless the Registrant determines, by clear and convincing
evidence, that the applicable standard of conduct has not been met. Such a
determination may be made by a majority of a quorum of the directors,
independent legal counsel, the stockholders, or a court of competent
jurisdiction. The Board of Directors shall authorize advancing litigation
expenses to a director or officer at his request upon receipt of an undertaking
by such director or officer to repay such expenses if it is ultimately
determined that he or she is not entitled to indemnification for such expenses.
The Registrant's Second Amended and Restated Articles of Organization also
provide that, in the event of a determination by the Registrant that a director
or officer did not meet the
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standard of conduct required for indemnification, or if the Registrant fails to
make an indemnification payment or an advance of expenses within 60 days after
such payment is claimed by a director or officer, such director or officer may
petition a court to make an independent determination of whether such director
or officer is entitled to indemnification. The Registrant's Second Amended and
Restated Articles of Organization explicitly provide for partial indemnification
of costs and expenses in the event that a director of officer is not entitled to
full indemnification.
Article 6 of the Registrant's Second Amended and Restated Articles of
Organization also eliminates the personal liability of the Registrant's
directors to the Registrant or its stockholders for monetary damages for breach
of a director's fiduciary duty, except to the extent Chapter 156B of the
Massachusetts General Laws prohibits the elimination or limitation of such
liability.
The Registrant has purchased a general liability insurance policy which
covers certain liabilities of directors and officers of the Registrant arising
out of claims based on acts or omissions in their capacity as directors or
officers.
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:
(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;
(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.
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(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.
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended (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 Westboro, Massachusetts on the 22nd
day of June, 2000.
ePRESENCE, INC.
By: /s/ William P. Ferry
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William P. Ferry
President and Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of ePresence, Inc., hereby
severally constitute William P. Ferry, Richard M. Spaulding, Kevin F. Newman and
William S. Gehrke, 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 subsequent amendments to said Registration Statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable ePresence, Inc. to comply with all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ William P. Ferry President, Chief Executive June 21, 2000
---------------------------- Officer and Director (Principal
William P. Ferry Executive Officer)
/s/ Richard M. Spaulding Senior Vice President June 21, 2000
---------------------------- and Chief Financial Officer
Richard M. Spaulding (Principal Financial Officer and
Principal Accounting Officer)
/s/ John F. Burton Director June 21, 2000
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John F. Burton
/s/ David C. Mahoney Director June 21, 2000
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David C. Mahoney
/s/ Albert A. Notini Director June 20, 2000
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Albert A. Notini
/s/ John J. Rando Director June 21, 2000
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John J. Rando
/s/ Fontaine K. Richardson Director June 21, 2000
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Fontaine K. Richardson
/s/ Robert M. Wadsworth Director June 21, 2000
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Robert M. Wadsworth
</TABLE>
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Exhibit Index
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Exhibit
Number Description
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4/(1)/ Specimen Certificate for shares of Common Stock, $.01
par value per share, of the Registrant
5 Opinion of Hale and Dorr LLP
10 Deferred Compensation Plan
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included on the signature page of this
Registration Statement)
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(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-49194).
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