As Filed With The Securities And Exchange Commission on February 6, 2007
Registration Statement No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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THINKENGINE NETWORKS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 20-8058881
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
100 NICKERSON ROAD
MARLBOROUGH, MASSACHUSETTS 01752
(Address of Registrant's Principal Executive Offices)
RESTRICTED STOCK PLAN
(Full Title of the Plan)
AMY M. TEFFT
THINKENGINE NETWORKS, INC.
100 NICKERSON ROAD
MARLBOROUGH, MASSACHUSETTS 01752
(508) 597-0447
(Name, Address and Telephone Number, including area code, of Agent for Service)
Copies of all communications, including all communications sent to agent for
service should be sent to:
MICHAEL GRUNDEI, ESQ.
WIGGIN AND DANA LLP
400 ATLANTIC STREET
STAMFORD, CONNECTICUT 06901
(203) 363-7600
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE REGISTRATION FEE
-------------------- ---------------- -------------------- ------------------ ------------------
COMMON STOCK, $.001
PAR VALUE
PER SHARE 500,000 SHARES $3.00 $1,500,000.00 $160.50
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(1) Plus such additional indeterminable number of shares as may be required
pursuant to the Restricted Stock Plan in the event of a stock dividend, stock
split, recapitalization or other similar change in the Common Stock.
(2) Computed in accordance with Rules 457(c) and 457(h) under the Securities Act
of 1933, as amended, such computation is based on $3.00 per share (the average
of the high and low prices of the registrant's common stock as reported on the
American Stock Exchange on February 2, 2007).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INFORMATION INCORPORATED BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement the
following documents and information heretofore filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") with the Securities and
Exchange Commission:
(a) The Company's Annual Report on Form 10-K/A Amendment No. 1 for the
fiscal year ended December 31, 2005;
(b) All other reports filed by the Company with the Commission since
December 31, 2005 pursuant to Section 13(a) or 15(d) of the Exchange
Act;
(c) The description of the Company's Common Stock is contained in the
Company's Registration Statement on Form 8-A dated January 8, 2007,
filed pursuant to Section 12(b) of the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents.
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 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors against expenses (including
attorney's fees) in connection with the defense or settlement of an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such an
officer or director actually and reasonably incurred.
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In accordance with the Delaware Law, the Registrant's Certificate of
Incorporation contains a provision to limit the personal liability of the
Registrant's directors for violations of their fiduciary duty. This provision
eliminates each director's liability to the Registrant or its stockholders for
monetary damages except (I) for any breach of the director's duty of loyalty to
the Registrant or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation or law, (iii)
under Section 174 of the Delaware Law providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions, or
(iv) for any transaction from which a director derived an improper personal
benefit. The effect of this provision is to eliminate the personal liability of
directors for monetary damages for actions involving a breach of their fiduciary
duty of care, including any such actions involving gross negligence. In
addition, the holders of Common Stock are deemed to have consented to certain
provisions of the Certificate of Incorporation under which certain allocations
or corporate opportunities are not deemed to breach a director's fiduciary duty
of loyalty.
The Registrant's Certificate of Incorporation provides for indemnification of
the Registrant's officers and directors to the full extent permitted by
applicable law.
In addition, the Registrant maintains directors' and officers' liability
insurance.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
4.1 Specimen certificate for Common Stock (Exhibit 1 to Form 8-A Registration
dated January 8, 2007 and included herein by reference)
5.1 Opinion of Wiggin and Dana LLP as to the legality of the securities being
registered (filed herewith)
23.1 Consent of Carlin, Charron & Rosen LLP (filed herewith)
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included in signature page)
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, as amended (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 Notwithstanding the foregoing, any increase or
decrease in 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 a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
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(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 (a)(I) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended (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 herein,
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.
(4) That, for the purpose of determining liability of the registrant
under the Securities Act to any purchaser in the initial distribution of
the securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications,
the undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser: (I) any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule 424; (ii)
any free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant; (iii) the portion of any other free writing
prospectus relating to the offering containing material information about
the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and (iv) any other communication that is an
offer in the offering made by the undersigned registrant to the
purchaser.
(b) 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 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 herein, 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
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 Securities and Exchange 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
The Registrant, pursuant to the requirements of the Securities Act of 1933,
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 Marlborough, Commonwealth of Massachusetts, on
February 6, 2007.
THINKENGINE NETWORKS, INC.
By /s/ Amy M. Tefft
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Amy M. Tefft, Corporate
Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Michael G. Mitchell, John E. Steinkrauss, Amy M. Tefft,
Harold F. Mayer and Michael Grundei his/her true and lawful attorneys-in-fact
and agents, each acting alone, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign any or
all amendments, including post-effective amendments, and supplements to this
registration statement, and to file the same, with all exhibits thereunto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, 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 fully to all intents and purposes as
they or he might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, 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
date indicated.
Signature Capacity Date
(I) Principal Executive Officer:
/s/Michael G. Mitchell President and Chief February 6, 2007
---------------------- Executive Officer
Michael G. Mitchell
(ii) Principal Financial and
Accounting Officer:
/s/John E. Steinkrauss Vice President, Chief February 6, 2007
---------------------- Financial Officer and
John E. Steinkrauss Treasurer
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(iii) A Majority of the Board of Directors:
/s/Robert C. Fleming February 6, 2007
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Robert C. Fleming
/s/Michael G. Mitchell February 6, 2007
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Michael G. Mitchell
/s/William A. Merritt February 6, 2007
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William A. Merritt
/s/Robert H. Scott February 6, 2007
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Robert H. Scott
/s/William J. Stuart February 6, 2007
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William J. Stuart
/s/John E. Sweeney February 6, 2007
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John E. Sweeney
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INDEX TO EXHIBITS
Exhibit Sequentially
Number Description Numbered Page
4.1 Specimen certificate for Common Stock (Exhibit1 to
Form 8-A Registration Statement dated January 8,
2007 and incorporated herein by reference)
5.1 Opinion of Wiggin and Dana LLP as to the legality
of the securities being registered 8
23.1 Consent of Carlin, Charron & Rosen LLP 9
23.2 Consent of Counsel Included herein
in Exhibit 5.1
24.1 Power of Attorney Included herein
on page 5
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