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As filed with the Securities and Exchange Commission
on January 19, 2001
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, 01581
Massachusetts (Zip Code)
(Address of Principal Executive Offices)
2000 NON-EXECUTIVE STOCK INCENTIVE 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
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Title of Amount to be Proposed Proposed Amount of
securities to be registered maximum maximum registration fee
registered offering price aggregate
per share offering price
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Common Stock 1,250,000 $ 4.97 (1) $6,212,500 (1) $1,553.13
$.01 par value shares
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(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low sale prices of the Common Stock
on the Nasdaq National Market on January 17, 2001 in accordance with
Rules 457(c) and 457(h) under the Securities Act of 1933, as amended.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I, Items 1 and 2, is included in documents
sent or given to participants in the Registrant's 2000 Non-Executive Stock
Incentive Plan 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, $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.
Not applicable.
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 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.
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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.
(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.
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(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.
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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
19th day of January, 2001.
ePRESENCE, INC.
By: /s/ Richard M. Spaulding
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Richard M. Spaulding
Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
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.
Signature Title Date
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/s/ WILLIAM P. FERRY President, Chief Executive January 19, 2001
__________________________ Officer and Director (Principal
William P. Ferry Executive Officer)
/s/ RICHARD M. SPAULDING Senior Vice President and Chief January 19, 2001
__________________________ Financial Officer (Principal
Richard M. Spaulding Financial Officer and Principal
Accounting Officer)
/s/ JOHN F. BURTON Director January 19, 2001
__________________________
John F. Burton
/s/ ALBERT A. NOTINI Director January 19, 2001
__________________________
Albert A. Notini
/s/ JOHN J. RANDO Director January 19, 2001
__________________________
John J. Rando
/s/ FONTAINE K. RICHARDSON Director January 19, 2001
__________________________
Fontaine K. Richardson
/s/ ROBERT M. WADSWORTH Director January 19, 2001
__________________________
Robert M. Wadsworth
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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
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Amper, Politziner & Mattia P.A.
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).
