As filed with the Securities and Exchange Commission on August 28, 1998.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NEXAR TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
04-3268334
(I.R.S. employer identification no.)
DELAWARE
(State or other jurisdiction of incorporation or organization)
257 TURNPIKE ROAD SOUTHBOROUGH, MA 01772
(Address of principal executive offices) (Zip Code)
1998 NON-QUALIFIED STOCK OPTION PLAN
(Full title of plans)
ALBERT J. AGBAY
CHIEF EXECUTIVE OFFICER
NEXAR TECHNOLOGIES, INC.
257 TURNPIKE ROAD
SOUTHBOROUGH, MASSACHUSETTS 01772
(Name and address of agent for service)
(508) 485-7900
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
=======================================================================================================
Proposed Proposed
Title of Maximum maximum Amount
securities Amount Offering aggregate of
to be to be price per offering registration
registered registered (1) share (2) price (2) fee
- -------------------------------------------------------------------------------------------------------
Common Stock, 2,500,000 $.34375 $859,375 $254.00
$0.01 par shares
value
=======================================================================================================
(1) Plus such additional number of shares as may be required pursuant to the
Plan in the event of a stock dividend, split-up of shares, recapitalization or
other similar change in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(h)(1), on the basis of the average of the high and low
bids of the Common Stock as reported on The Nasdaq National Market on August 25,
1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents filed by the Company with the Commission (File No.
0-29194) are incorporated herein by reference: (1) the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1997 filed on March 31,
1998; (2) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998; (3) the Company's definitive Proxy Statement
for the Annual Meeting of Stockholders of the Company filed on April 30, 1998;
and (4) the Company's Registration Statement on Form 8-A registering the
Company's Common Stock under Section 12(g) of the Exchange Act filed on
March 17, 1997.
In addition, all documents filed by the Company after the initial filing
date of this registration statement pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and prior to the filing of a post-effective amendment which indicates that all
shares registered hereunder have been sold or which de-registers all 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
documentation.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The legality of the Common Stock offered hereby is being passed upon for the
Company by McDermott, Will & Emery (a partnership including professional
corporations), Boston, Massachusetts. David A. Cifrino, the Secretary of the
Company, is the President of David A. Cifrino, P.C., a Massachusetts
professional corporation which is a partner of McDermott, Will & Emery.
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Item 6. Indemnification of Officers and Directors
-----------------------------------------
Section 145 of the General Corporation Law of the State of Delaware provides
that a corporation may indemnify a director, officer, employee or agent against
expenses (including attorneys' fees), judgments, fines and for amounts paid in
settlement in respect of or in successful defense of any 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 corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Article Twelfth of the Company's Restated Certificate of Incorporation
provides that no director of the Company shall be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the director's duty of
loyalty, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. Article Twelfth further provides
that a director's personal liability shall be eliminated or limited in the
future to the fullest extent permitted from time to time by the Delaware General
Corporation Law.
Article Thirteenth of the Company's Restated Certificate of Incorporation
provides that the Company shall, to the fullest extent permitted from time to
time under the Delaware General Corporation Law, indemnify each of its directors
and officers against all expenses (including attorneys' fees and expenses),
judgments, fines and amounts paid in settlement in respect to any action, suit
or proceeding in which such director or officer may be involved or with which he
may be threatened, while in office or thereafter, by reason of his or her
actions or omissions in connection with services to the company, such
indemnification to include prompt payment of expenses in advance of the final
disposition of any such action, suit or proceeding.
The Company, maintains a directors and officers liability insurance policy
for the benefit of its directors and officers.
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Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
5.1 Opinion of McDermott, Will & Emery as to the legality of the shares
being registered.
10.1 1998 Non-Statutory Stock Option Plan
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of McDermott, Will & Emery (included in Exhibit 5.1).
25.1 Power of Attorney (included in page II-6).
Item 9. Undertakings
------------
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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; and
(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.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing
II-3
of the Company's annual report pursuant to Section 13(a) or 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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of 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, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing a 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 Southborough, Commonwealth of Massachusetts as of
August 26, 1998.
Nexar Technologies, Inc.
(Issuer and Employer)
By: Albert J. Agbay,
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Albert J. Agbay, Gerald Y. Hattori and
Steven Georgiev, jointly and severally, his true and lawful attorneys-in-fact
and agents with full powers of substitution, 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 all 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 in and about the premises, as
fully to all intents and purposes 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 thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below as of August 26, 1998 by the
following persons in the capacities indicated.
Name Capacity
- ---- --------
Albert J. Agbay Chairman of the Board, President
& Chief Executive Officer
(Principal Executive Officer)
Gerald Y. Hattori Vice President of Finance,
Chief Financial Officer and Treasurer
(Principal Financial
& Accounting Officer)
Steven Georgiev Director
Joseph E. Levangie Director
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INDEX TO EXHIBITS
-----------------
5.1 Opinion of McDermott, Will & Emery as to the legality of the shares
being registered.
10.1 1998 Non-Statutory Stock Option Plan
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of McDermott, Will & Emery (included in Exhibit 5.1).
25.1 Power of Attorney (included in page II-6).