As filed with the Securities and Exchange Registration No. 333-
Commission on May 20, 2002
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HORIZON TELCOM, INC.
(Exact name of registrant as specified in its charter)
Ohio 31-1449037
---- ----------
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
68 East Main Street, Chillicothe, Ohio 45601-0480
-------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
HORIZON TELCOM, INC. 1999 STOCK OPTION PLAN
(Full title of the plan)
Thomas McKell, CEO
Horizon Telcom, Inc.
68 East Main Street
Chillicothe, Ohio 45601-0480
(Name and address of agent for service)
(740) 772-8200
(Telephone number, including area code, of agent for service)
Copy to:
Robert F. Dow, Esq.
Arnall Golden Gregory LLP
1201 West Peachtree Street
2800 One Atlantic Center
Atlanta, Georgia 30309-3450
(404) 873-8706
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
Proposed
Proposed maximum Amount of
Title of securities Amount to be Maximum offering aggregate registration
to be registered(1) Registered Price per share(2) offering price fee(2)
- ------------------------------------ ------------------- ------------------------ ----------------- -----------------
Class A and Class B Common Stock, 950 Shares $60.00 $57,000 $ 5.25
Without par value
- --------------------------------------------------------------------------------------------------------------------
Class A and Class B Common Stock, 9,050 Shares $59.28 $536,484 $49.36
Without par value
- --------------------------------------------------------------------------------------------------------------------
TOTAL $54.61
- --------------------------------------------------------------------------------------------------------------------
(1) This Registration Statement also covers such in determinable number of
additional shares as may become issuable to prevent dilution in the event
of stock splits, stock dividends or similar transactions pursuant to the
terms of the Horizon Telcom, Inc. 1999 Stock Option Plan (the "Plan").
(2) Calculated pursuant to Rule 457(h), based upon the price at which the
options granted under the Plan may be exercised ($60.00) and the latest
available book value for the Common Stock on March 31, 2001 for the shares
subject to options issuable but not yet granted under the Plan ($59.28).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in the Registration
Statement:
(a) The Registrant's Registration Statement on Form 10 ("Form 10") filed
under Section 12 of the Securities Exchange Act of 1934.
(b) The Registrant's Annual Report on Form 10-K for the year ended December
31, 2001.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2002.
(d) The description of the Registrant's Common Stock, as such description
is set forth in the Form 10, including any amendment or report filed for the
purpose of updating such description.
(e) All documents subsequently filed by the Registrant 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 to this registration statement which
indicates that all of the shares of Common Stock offered have been sold or which
deregisters all of such shares then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of 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 such 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The regulations of Horizon Telcom provide for indemnification of officers
and directors, as described below:
Actions Not by the Company. Horizon Telcom 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 right of the
Company, by reason of the fact that he is or was a director or officer of
Horizon Telcom or is or was serving at the request of Horizon Telcom as a
director, officer, partner, or trustee of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' 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
Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself create a
2
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
Actions by the Company. Horizon Telcom 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 or suit by or in the right of Horizon Telcom to procure a
judgment in its favor by reason of the fact that he is or was a director or
officer of the Company, or is or was serving at the request of Horizon Telcom as
a director, officer, partner, or trustee of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust, or other
enterprise against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit 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 Company, except that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to Horizon Telcom unless, and only to
the extent that, the court of common pleas, or the court in which such action or
suit was brought, shall determine upon application 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 of common pleas or such other court shall deem proper.
Indemnification for Expenses. To the extent that a person indemnified by
right or at the option of Horizon Telcom under the above bylaw provisions has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in said sections, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses, including attorneys'
fees, actually and reasonably incurred by him in connection therewith.
Determination of Indemnification. Any indemnification under these bylaw
provisions, unless ordered by a court, shall be made by Horizon Telcom only as
authorized in the specific case upon a determination that indemnification of the
indemnified person is proper in the circumstances because he has met the
applicable standard of conduct set forth in the bylaws. Such determination shall
be made (a) by a majority vote of a quorum consisting of directors of Horizon
Telcom who were not and are not parties to or threatened with any such action,
suit, or proceeding, or (b) if such a quorum is not obtainable or if a majority
vote of a quorum of disinterested directors so directs, in a written opinion by
independent legal counsel, other than an attorney or a firm having associated
with it an attorney who has been retained by or who has performed services for
Horizon Telcom or any person to be indemnified, within the past five years, or
(c) by the shareholders, or (d) by the court of common pleas or the court in
which such action, suit, or proceeding was brought. Any determination made by
the disinterested directors under clause (a) or by independent legal counsel
under clause (b) shall be promptly communicated to the person who threatened or
brought the action or suit by or in the right of the Company, and within ten
days after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such action or suit was
brought to review the reasonableness of such determination.
Advances of Expenses. Expenses, including attorneys' fees, incurred in
defending any action, suit, or proceeding referred to in the above bylaw
provisions may be paid by Horizon Telcom in advance of the final disposition of
such action, suit, or proceeding as authorized by the board of directors in the
specific case upon receipt of an undertaking by or on behalf of the indemnified
person to repay such amount, unless it shall ultimately be determined that he is
entitled to be indemnified by Horizon Telcom as authorized in the above bylaw
provisions. No holder shall have the right to question such expenses paid so
long as the board of directors has authorized such payment and the
aforementioned undertaking has been received by the Company; provided that the
restriction contained in this sentence shall not be construed to restrict a
shareholder's right to question the reasonableness of the ultimate determination
of indemnification as described above under "--Determination of
Indemnification."
Indemnification Not Exclusive. The indemnification provided by the
bylaws shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under the articles, or any agreement, vote of
shareholders or disinterested directors, statute (as now existing or as
hereafter enacted or amended), or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office and
shall continue as to a person who has ceased to be a director, officer, partner,
trustee, or other indemnified capacity and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
3
Insurance. Horizon Telcom is authorized under the bylaws to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, trustee, employee, or agent of the Company, or is or was serving at the
request of Horizon Telcom as a director, officer, partner, trustee, employee, or
agent of another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not Horizon Telcom has the obligation or power to
indemnify him against such liability under the bylaws. Horizon Telcom has
purchased such insurance covering the officers and directors.
Definitions. As used in the bylaws, references to "Company" includes
all constituent corporations in a consolidation or merger and the new or
surviving corporation, so that any person who is or was a director or officer of
such a constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, partner, trustee, or other
indemnified capacity of another corporation, domestic or foreign, nonprofit or
for profit, partnership, joint venture, trust, or other enterprise, shall stand
in the same position under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving corporation in the
same capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Exhibit
----------- -------
4.1 Form of Stock Certificate (Incorporated by reference to
Exhibit 4.1 to the Registrant's Registration Statement on
Form 10 (No. 000-32617) filed on April 30, 2001, as amended)
4.2 Articles of Incorporation of Horizon Telcom (Incorporated by
reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form 10 (No. 000-32617) filed on April 30,
2001, as amended)
4.3 Code of Regulations of Horizon Telcom (Incorporated by
reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form 10 (No. 000-32617) filed on April 30,
2001, as amended)
5* Opinion of Arnall Golden Gregory LLP regarding legality
23.1* Consent of Arnall Golden Gregory LLP (included as part of
Exhibit 5 hereto)
23.2* Consent of Arthur Andersen LLP
24.1* Power of Attorney (included as part of the signature page
hereto)
- ------------------
* Filed herewith.
4
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, 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 paragraph (a)(1)(i) and (a)(1)(ii)
shall not apply if 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 the 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 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(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 provisions described in Item 6 above, 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
proceedings) 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 Act and will
be governed by the final adjudication of such issue.
5
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 the City of Chillicothe, State of Ohio on February 20, 2002.
HORIZON TELCOM, INC.
By: /s/ Thomas McKell
---------------------------------------------
Thomas McKell
President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas McKell and Peter M. Holland and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place, and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as he might or could do in person, hereby ratifying and confirming all
that said attorneys-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.
PRINCIPAL EXECUTIVE, FINANCIAL & ACCOUNTING OFFICERS AND DIRECTORS:
Name Title Date
- ---------------------------------------------
/s/ Thomas McKell President, Chief Executive Officer and February 20, 2002
- ---------------------------------------------
Thomas McKell Director (Principal Executive Officer)
- ---------------------------------------------
/s/ Peter M. Holland Financial Officer (Principal Financial February 20, 2002
- --------------------------------------------
Peter M. Holland and Accounting Officer)
- ---------------------------------------------
/s/ John E. Herrnstein Director February 20, 2002
- --------------------------------------------
John E. Herrnstein
- ---------------------------------------------
/s/ Joseph G. Kear Director February 20, 2002
- --------------------------------------------
Joseph G. Kear
- ---------------------------------------------
/s/ David McKell Director February 20, 2002
- --------------------------------------------
David McKell
- ---------------------------------------------
/s/ Joseph S. McKell Director February 20, 2002
- --------------------------------------------
Joseph S. McKell
- ---------------------------------------------
/s/ Robert McKell Director February 20, 2002
- --------------------------------------------
Robert McKell
- ---------------------------------------------
/s/ Helen M. Sproat Director February 20, 2002
- --------------------------------------------
Helen M. Sproat
- ---------------------------------------------
/s/ Jack E. Thompson Director February 20, 2002
- --------------------------------------------
Jack E. Thompson
- ---------------------------------------------
/s/ Jerry Whited Director February 20, 2002
- --------------------------------------------
Jerry Whited
- ---------------------------------------------
6
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Form of Stock Certificate (Incorporated by reference to Exhibit 4.1 to
the Registrant's Registration Statement on Form 10 (No. 000-32617)
filed on September 30, 2001)
5* Opinion of Arnall Golden Gregory LLP regarding legality
23.1* Consent of Arnall Golden Gregory LLP (included as part of Exhibit 5
hereto)
23.2* Consent of Arthur Andersen LLP
24.1* Power of Attorney (included as part of the signature page hereto)
- ------------------------
* Filed herewith.