Arbinet Thexchange Inc - Securities Registration: Employee Benefit Plan (S-8)
March 19 2008 - 4:29PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on March 19, 2008
Registration Statement No. 333-
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARBINET-THEXCHANGE, INC.
(Exact Name
of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
13-3930916
(I.R.S. Employer Identification No.)
120 Albany Street, Tower II, Suite 450
New Brunswick, New Jersey 08901-2163
(732) 509-9100
(Address, including
zip code, and telephone number, including area code, of registrant’s principal executive office)
ARBINET-THEXCHANGE, INC. 2004
STOCK INCENTIVE PLAN, AS AMENDED
(Full Title of the Plans)
John B. Wynne, Jr.
Chief Financial Officer
Arbinet-thexchange, Inc.
120 Albany
Street, Tower II, Suite 450
New Brunswick, New Jersey 08901-2163
(732) 509-9100
(Name, address, including zip code and telephone number,
including area code, of agent for service)
With a copy to:
Joseph L. Johnson III, Esq.
Goodwin Procter LLP
Exchange Place
Boston, Massachusetts 02109-2881
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities Being Registered
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Amount to be
Registered
(1)
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Proposed Maximum
Offering Price Per
Share
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee
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Common Stock par value $0.001 per share
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7,633
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$3.97
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$30,303.01
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20,719
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$4.15
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$85,983.85
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245,360
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$4.27
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$1,047,687.20
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248,712
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$4.33
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$1,076,922.96
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155,472
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$4.52
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$702,733.44
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370,763
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$4.61
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$1,709,217.43
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190,837
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$4.68
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$893,117.16
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61,064
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$4.73
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$288,832.72
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230,803
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$4.79
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$1,105,546.37
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4,361
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$4.84
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$21,107.24
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90,510
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$5.04
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$456,170.40
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23,990
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$5.07
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$121,629.30
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3,974
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$5.16
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$20,505.84
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190,837
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$5.20
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$992,352.40
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54,524
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$5.21
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$284,070.04
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408,936
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$5.32
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$2,175,539.52
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65,428
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$5.41
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$353,965.48
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124,436
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$5.53
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$688,131.08
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325,202
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$5.55
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$1,804,871.10
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1,635
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$5.67
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$9,270.45
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69,366
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$5.80
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$402,322.80
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27,262
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$5.83
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$158,937.46
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2,592
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$6.12
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$15,863.04
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27,262
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$6.20
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$169,024.40
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15,809
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$6.43
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$101,651.87
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2,725
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$6.76
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$18,421.00
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28,351
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$11.01
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$312,144.51
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647,984
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$4.01
(2)
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$2,598,415.84
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Total:
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3,515,346
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$16,962,492.71
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$666.63
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of common
stock which become issuable under the above-named plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of
outstanding shares of common stock.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act. The fee is calculated on the basis of the average
of the high and low prices for the Common Stock of Arbinet-thexchange, Inc. on March 18, 2008 as reported on the NASDAQ Global Market.
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INTRODUCTORY NOTE
This Registration Statement on Form S-8 registers 3,515,346 additional securities of the same class as other securities of Arbinet-thexchange, Inc. (the “Registrant”) for which the Registrant previously
filed a Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), relating to its 2004 Stock Incentive Plan, as amended (the “Plan”). Accordingly, the contents of the
Registrant’s prior Registration Statement on Form S-8 (Registration No. 333-125550), as filed with the Securities and Exchange Commission (the “Commission”) on June 6, 2005, is hereby incorporated by reference pursuant
to General Instruction E to Form S-8. After giving effect to this filing, an aggregate of 5,335,661 shares of the Registrant’s Common Stock, par value $0.001 per share (the “Common Stock”), have been registered for issuance pursuant
to the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required in Part I of this
Registration Statement is included in the prospectus for the Plan, which the Registrant has excluded from this Registration Statement in accordance with the instructions to Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The
Registrant hereby incorporates by reference the following documents which have previously been filed with the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”):
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•
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the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007;
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•
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the Registrant’s Current Reports on Form 8-K filed on January 11, 2008; February 11, 2008; February 26, 2008; and February 28,
2008 (but only to the extent filed rather than furnished);
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•
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the description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A filed pursuant to the Exchange Act,
including any amendments and reports filed for the purpose of updating such description.
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In addition, all documents
subsequently filed with the Commission by the Registrant pursuant to Sections 13(a) and 13(c), Section 14 and Section 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities
offered hereunder 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 a part hereof from the date of such documents (in each case, other
than information in such documents that is deemed not to be filed).
The following is a complete list of
exhibits filed or incorporated by reference as part of this Registration Statement.
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Exhibit No.
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Exhibit
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5.1*
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Opinion of Goodwin Procter
LLP
as to the legality of the securities being registered
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23.1*
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Consent of Goodwin Procter
LLP
(included in Exhibit 5.1)
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23.2*
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Consent of Ernst & Young LLP, as independent auditors
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24.1*
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Powers of Attorney (included on signature pages to this Registration Statement)
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1
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 town of New Brunswick, the
State of New Jersey on this 19
th
day of March 2008.
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ARBINET-THEXCHANGE, INC.
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By:
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/s/ John B. Wynne, Jr.
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John B. Wynne, Jr.
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Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints each of W. Terrell Wingfield, Jr. and John B.
Wynne, Jr. such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person and in such person’s 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 each said attorney-in-fact
and agent 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 such person might or could do in person, hereby ratifying and
confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, 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.
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Signature
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Title
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Date
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/s/ William M. Freeman
William M. Freeman
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Chief Executive Officer and President and Director (Principal Executive Officer)
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March 19, 2008
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/s/ John B. Wynne, Jr.
John B. Wynne, Jr.
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Chief Financial Officer (Principal Financial Officer)
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March 19, 2008
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/s/ Robert C. Atkinson
Robert C. Atkinson
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Director
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March 18, 2008
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/s/ Michael J. Donahue
Michael J. Donahue
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Director
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March 19, 2008
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2
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/s/ Stanley Kreitman
Stanley Kreitman
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Director
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March 18, 2008
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/s/ Alex Mashinsky
Alex Mashinksy
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Director
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March 18, 2008
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Shawn F.
O’Donnell
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Director
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/s/ John B. Penney
John B. Penney, Jr.
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Director
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March 19, 2008
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/s/ Michael J. Ruane
Michael J. Ruane
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Director
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March 18, 2008
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Jill Thoerle
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Director
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3
EXHIBIT INDEX
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Exhibit No.
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Exhibit
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5.1*
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Opinion of Goodwin Procter
LLP
as to the legality of the securities being registered
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23.1*
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Consent of Goodwin Procter
LLP
(included in Exhibit 5.1)
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23.2*
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Consent of Ernst & Young LLP, as independent auditors
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24.1*
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Powers of Attorney (included on signature pages to this Registration Statement)
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