Registration Statement
As filed with the Securities and Exchange Commission on May 30, 2014
Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 CyrusOne Inc.
(Exact name of registrant as specified in its charter)
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Maryland | | 46-0691837 |
(State or other jurisdiction of incorporation or organization) | | (IRS Employer Identification No.) |
1649 West Frankford Road
Carrollton, TX 75007
(Address of Principal Executive Offices and Zip Code)
CyrusOne Inc. 2014 Employee Stock Purchase Plan
(Full title of the plan)
Thomas W. Bosse, Esq.
Vice President, General Counsel & Secretary
CyrusOne Inc.
1649 West Frankford Road
Carrollton, TX 75007
(972) 350-0060
(Name, address and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer | | ¨
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Non-accelerated filer | | x (Do not check if a smaller reporting company) | | Smaller reporting company | | ¨ |
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered | | Amount to be registered(1) | | Proposed maximum offering price per share (2) | | Proposed maximum aggregate offering price(2) | | Amount of registration fee |
Common Stock, $0.01 par value per share Shares not previously registered | | 200,000 | | $22.70 | | $4,540,000 | | $584.75 |
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(1) | Amount to be registered consists of an aggregate of 200,000 shares of CyrusOne Inc. (the “Company”) common stock issuable pursuant to the CyrusOne Inc. 2014 Employee Stock Purchase Plan (the “Plan”), including additional shares that may become issuable in accordance with the adjustment and anti-dilution provisions of the Plan. |
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(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the “Securities Act”), based on the average of the high and low sales prices of the Company’s common stock as reported on The NASDAQ Stock Market on May 28, 2014.2 |
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this registration statement will be delivered to the participants in the Plan as specified by Rule 428(b)(1) under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
(b) Upon written or oral request, the Company will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this registration statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b). Requests for the above-mentioned information should be directed to the Company’s General Counsel and Secretary, at the address and telephone number on the cover of this registration statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference and deemed to be a part hereof:
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(a) | The Company’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the Commission on March 3, 2014; |
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(b) | All reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act, since December 31, 2013; |
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(c) | The description of the Company’s common stock contained in the Company’s registration statement on Form 8-A filed with the Commission on January 17, 2013, including all amendments or reports filed for the purpose of updating such description; and |
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(d) | All other documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this registration statement that indicates that all securities offered have been sold or that deregisters all securities that remain unsold. |
Any statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded for the purpose of this registration statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated herein by reference 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.
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages, except for liability resulting from (i) actual receipt of an improper benefit or profit in money, property or services or (ii) active and deliberate dishonesty that is established by a final judgment and that is material to the cause of action. The Company’s Charter (the “Charter”) contains a provision that eliminates the liability of its directors and officers to the maximum extent permitted by Maryland law.
The Maryland General Corporation Law (“MGCL”) requires the Company (unless the Charter provides otherwise, which it does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made a party by reason of his or her service in that capacity. The MGCL permits the Company to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities unless it is established that:
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• | the act or omission of the director or officer was material to the matter giving rise to the proceeding and (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty; |
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• | the director or officer actually received an improper personal benefit in money, property or services; or |
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• | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
Under the MGCL, the Company may not indemnify a director or officer in a suit by the Company or in its right in which the director or officer was adjudged liable to the Company or in a suit in which the director or officer was adjudged liable on the basis that personal benefit was improperly received. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an adverse judgment in a suit by the Company or in the Company’s right, or for a judgment of liability on the basis that personal benefit was improperly received, is limited to expenses.
In addition, the MGCL permits the Company to advance reasonable expenses to a director or officer upon the Company’s receipt of:
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• | a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the Company; and |
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• | a written undertaking by or on behalf of the director or officer to repay the amount paid or reimbursed by the Company if it is ultimately determined that the director or officer did not meet the standard of conduct. |
The Charter authorizes the Company to obligate itself, and the Company’s Amended and Restated Bylaws (the “Bylaws”) obligate it, to the maximum extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
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• | any present or former director or officer who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service in that capacity; or |
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• | any individual who, while a director or officer of the Company and at the Company’s request, serves or has served as a director, officer, partner, trustee, member or manager of another corporation, REIT, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity. |
The Charter and Bylaws also permit the Company to indemnify and advance expenses to any person who served a predecessor of the Company in any of the capacities described above and to any employee or agent of the Company or a predecessor of the Company.
The Company has entered into indemnification agreements with each of its directors and executive officers that provide for indemnification to the maximum extent permitted by Maryland law.
The Amended and Restated Agreement of Limited Partnership of CyrusOne LP provides that the Company, its directors, officers and employees, the general partner and its trustees, officers and employees, employees of our operating partnership and any other persons whom CyrusOne GP, in its capacity as general partner of CyrusOne LP, may designate are indemnified to the fullest extent permitted by law.
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling the Company for liability arising under the Securities Act, the Company has been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index attached hereto, which is incorporated herein by reference.
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;
(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 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 (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and 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 Company 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.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or 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 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 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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 Carrollton, state of Texas, on this 30th day of May, 2014.
CYRUSONE INC.
By: /s/ Gary J. Wojtaszek
Gary J. Wojtaszek
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this registration statement on Form S-8 has been signed as of the 30th day of May, 2014 by the following persons in the capacities indicated.
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Signature | | Title |
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/s/ Gary J. Wojtaszek | | President, Chief Executive Officer and Director (Principal Executive Officer) |
Gary J. Wojtaszek | |
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/s/ Kimberly H. Sheehy | | Chief Financial Officer and Administrative Officer (Principal Financial Officer) |
Kimberly H. Sheehy | |
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/s/ Patricia M. McBratney | | Vice President and Controller (Chief Accounting Officer) |
Patricia M. McBratney | |
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* | | Chairman of the Board of Directors |
John F. Cassidy | |
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* | | Director |
William E. Sullivan | |
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* | | Director |
T. Tod Nielsen | |
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* | | Director |
Alex Shumate | |
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* | | Director |
Melissa E. Hathaway | |
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* | | Director |
David H. Ferdman | |
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* | | Director |
Lynn A. Wentworth | |
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* | | Director |
John W. Gamble, Jr. | |
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*By: | | /s/ Thomas W. Bosse, Esq. |
| | Thomas W. Bosse, Esq. |
| | Attorney-in-Fact |
INDEX TO EXHIBITS
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Exhibit Number | | Description |
4.1 | | Articles of Amendment and Restatement of CyrusOne Inc. (Incorporated by reference to Exhibit 3.1 of Form 8-K, filed by the Registrant on January 25, 2013 (Registration No. 001-35789)). |
4.2 | | Amended and Restated Bylaws of CyrusOne Inc. (Incorporated by reference to Exhibit 3.2 of Form 8-K, filed by the Registrant on January 25, 2013 (Registration No. 001-35789)). |
5.1 | | Opinion of Venable LLP, with respect to the legality of the shares being registered. |
23.1 | | Consent of Venable LLP (included in Exhibit 5.1). |
23.2 | | Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm. |
24.1 | | Powers of Attorney. |
99.1 | | CyrusOne Inc. 2014 Employee Stock Purchase Plan (Incorporated by reference to Appendix A to the Registrant’s Proxy Statement on Schedule 14A filed by the Registrant on March 19, 2014 (Registration No. 001-35789)). |