As filed with the Securities and Exchange Commission on July 6, 1999
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
SPYGLASS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 37-1258139
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
NAPERVILLE CORPORATE CENTER
1240 EAST DIEHL ROAD, NAPERVILLE, ILLINOIS 60563
(Address of Principal Executive Offices) (Zip Code)
1997 STOCK OPTION PLAN FOR FORMER
NAVITEL COMMUNICATIONS STOCK OPTION HOLDERS
(Full title of the Plan)
DOUGLAS P. COLBETH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
C/O SPYGLASS, INC.
NAPERVILLE CORPORATE CENTER
1240 EAST DIEHL ROAD
NAPERVILLE, ILLINOIS 60563
(Name and address of agent for service)
(630) 505-1010
(Telephone number, including area code, of agent for service)
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<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount to offering aggregate Amount of
to be be price per offering registration
registered registered share price fee
------------- ---------- --------- ----------------- ----------
Common Stock,
$.01 par value 100,918 $ 19.20 (1) $1,937,625.60 (1) $539.00
per share shares
______________
(1) Estimated solely for the purpose of calculating the registration
fee, and based upon the average of the high and low prices of
the Registrant's Common Stock as reported by the Nasdaq National
Market on July 2, 1999 in accordance with Rules 457(c) and
457(h) of the Securities Act of 1933.
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<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent
or given to participants in the Registrant's 1997 Stock Option Plan
for Former Navitel Communications Stock Option Holders 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
documents, which are filed with the Securities and Exchange
Commission (the "Commission"), are incorporated in this Registration
Statement by reference:
The following
(1) The Registrant's latest annual report filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (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 Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report or the prospectus referred to in
(1) above.
(3) The description of the common stock of the Registrant,
$.01 par value per share (the "Common Stock"), contained in the
Registrant's Registration Statement on Form 8-A 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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
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Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of Delaware provides
that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons
serving at the request of the corporation in related capacities
against amounts paid and expenses incurred in connection with an
action or proceeding to which he is or is threatened to be made a
party by reason of such position, if such person shall have acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, in any
criminal proceeding, if such person had no reasonable cause to
believe his conduct was unlawful; provided that, in the case of
actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which
such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines
that such indemnification is proper under the circumstances.
Article NINTH of the Registrant's Amended and Restated
Certificate of Incorporation, as amended, provides that a director or
officer of the Registrant (a) shall be indemnified by the Registrant
against all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement reasonably incurred in connection with
any litigation or other legal proceeding (other than an action by or
in the right of the Registrant) brought against him by virtue of his
position as a director or officer of the Registrant 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 proceeding, had no reasonable cause to believe
his conduct was unlawful and (b) shall be indemnified by the
Registrant against expenses (including attorneys' fees) and amounts
paid in settlement reasonably incurred in connection with any action
by or in the right of the Registrant by virtue of his position as a
director or officer of the Registrant 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, except that no indemnification
shall be made with respect to any such matter as to which such
director or officer shall have been adjudged to be liable to the
Registrant, unless and only to the extent that a court determines
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, he shall be
indemnified against all expenses (including attorneys' fees)
reasonably incurred by him in connection therewith. Expenses
incurred in defending a civil or criminal action, suit or proceeding
shall be advanced by the Registrant to a director or officer, at his
request, upon receipt of an undertaking by the director or officer to
repay such amount if it is ultimately determined that he is not
entitled to indemnification.
Indemnification is required to be made unless the Registrant
determines (in the manner provided in the Amended and Restated
Certificate of Incorporation, as amended) that the applicable
standard of conduct required for indemnification has not been met.
In the event of a determination by the Registrant that the director
or officer did not meet the applicable standard of conduct required
for indemnification, or if the Registrant fails to make an
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indemnification payment within 60 days after such payment is claimed
by such person, such person is permitted to petition a court to make
an independent determination as to whether such person is entitled to
indemnification. As a condition precedent to the right of
indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant
has the right to participate in such action or assume the defense
thereof.
Article NINTH of the Registrant's Amended and Restated
Certificate of Incorporation, as amended, further provides that the
indemnification provided therein is not exclusive, and provides that
in the event that the Delaware General Corporation Law is amended to
expand the indemnification permitted to directors or officers, the
Registrant must indemnify those persons to the fullest extent
permitted by such law as so amended.
The Company has purchased a general liability insurance policy
which covers certain liabilities of directors and officers of the
Company arising out of claims based on acts or omissions in their
capacity as directors or officers.
Article EIGHTH of the Registrant's Amended and Restated
Certificate of Incorporation, as amended, provides that, except to
the extent that the General Corporation Law of Delaware prohibits the
elimination or limitation of liability of directors for breaches of
fiduciary duty, no director of the Registrant shall be personally
liable to the Registrant or its stockholders for monetary damages for
any breach of fiduciary duty as a director.
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,
<PAGE>
represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in the 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) if, in the
aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective
Registration Statement; and
(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 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 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.
(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 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 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 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 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
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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.
<PAGE>
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 City of Naperville, State of
Illinois, on July 6, 1999.
SPYGLASS, INC.
By: /s/ Gary L. Vilchick
Gary L. Vilchick
Executive Vice President, Finance,
Administration and Operations, and
Chief Financial Officer
<PAGE>
POWER OF ATTORNEY
We, the undersigned officers and directors of Spyglass, Inc. hereby
severally constitute Gary L. Vilchick and Patrick J. Rondeau, Esq.,
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 Spyglass, 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.
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 date indicated.
Signature Title Date
/s/ Douglas P. Colbeth President, Chief July 6, 1999
---------------------- Executive Officer and
Douglas P. Colbeth Director (principal
executive officer)
/s/ Gary L. Vilchick Executive Vice July 6, 1999
-------------------- President, Finance,
Gary L. Vilchick Administration and
Operations and Chief
Financial Officer
(principal financial and
accounting officer)
/s/ Charles T.Brumback Director July 6, 1999
----------------------
Charles T. Brumback
/s/ Brian J. Jackman Director July 6, 1999
--------------------
Brian J. Jackman
/s/Timothy K. Krauskopf Director July 6, 1999
-----------------------
Timothy K. Krauskopf
/s/ John Shackleton Director July 6, 1999
--------------------
John Shackleton
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 (1) Amended and Restated Certificate of Incorporation
of the Registrant, as amended
4.2 (2) By-Laws of the Registrant
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Consent of PricewaterhouseCoopers LLP
24.1 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-8 (File No. 333-04357) filed
May 23, 1996.
(2) Incorporated herein by reference from the Registrant's
Registration Statement on Form S-1 (File No. 33-92174).
<PAGE>
EXHIBIT 5.1
July 6, 1999
Spyglass, Inc.
Naperville Corporate Center
1240 East Diehl Road
Naperville, Illinois 60563
Re: 1997 Stock Option Plan for Former
Navitel Communications Stock Option Holders
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement
on Form S-8 (the "Registration Statement") to be filed on July 6,
1999 with the Securities and Exchange Commission relating to 100,918
shares of the Common Stock, $.01 par value per share ("Shares"), of
Spyglass, Inc., a Delaware corporation (the "Company"), issuable
under the Company's 1997 Stock Option Plan for Former Navitel
Communications Stock Option Holders (the "Plan").
We have examined the Agreement and Plan of Merger among the
Company, Spyglass Acquisition Corp. and Navitel Communications, Inc.,
dated as of March 31, 1999, the Amended and Restated Certificate of
Incorporation, as amended, and the By-laws of the Company and
originals, or copies certified to our satisfaction, of all pertinent
records of the meetings of the directors and stockholders of the
Company, the Registration Statement and such other documents relating
to the Company as we have deemed material for the purposes of this
opinion.
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 certified or
photostatic copies and the authenticity of the originals of such
latter documents.
Based upon the foregoing, we are of the opinion that the Company
has duly authorized for issuance the Shares, and the Shares, when
issued and paid for in accordance with the terms of the Plan and at a
price per share in excess of the par value per share for such Shares,
will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission in connection with the
Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the 1997 Stock Option Plan for
Former Navitel Communications Stock Option Plan Holders of Spyglass,
Inc. of our report dated October 19, 1998, with respect to the
consolidated financial statements and schedule of Spyglass Inc.
incorporated by reference in its Annual Report on Form 10-K for the
year ended September 30, 1998, and to the incorporation by reference
of our report dated June 21, 1999, with respect to the financial
statements of Navitel Communications, Inc. for the years ended
September 30, 1998 and 1997, and the period from inception (May 21,
1996) through September 30, 1996 included in Spyglass, Inc.'s Amended
Current Report on Form 8-K/A filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
July 6, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated October 25,
1996, relating to the financial statements, which appears on page 31
of the 1996 Annual Report to Shareholders of Spyglass, Inc., which is
incorporated by reference in Spyglass, Inc.'s Annual report on Form
10-K for the year ended September 30, 1996. We also consent to the
incorporation by reference of our report dated October 25, 1996 on
the financial statement schedules, which appears in such Annual
Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
Chicago, Illinois
July 6, 1999
