SEC Form S-8 filed by Cogent Communications Holdings Inc.

As filed with the Securities and Exchange Commission on May 8, 2025.

Registration No. 333-       

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

COGENT COMMUNICATIONS HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

2450 N Street N.W.

Washington, D.C. 20037

(Address of Principal Executive Offices)(Zip Code)

Second Amended and Restated Cogent Communications Holdings, Inc. 2017 Incentive Award Plan

(Full title of the plan)

David Schaeffer

Chief Executive Officer

Cogent Communications Holdings, Inc.

2450 N Street N.W.

Washington, D.C. 20037

(Name and address of agent for service)

(202) 295-4200

(Telephone number, including area code, of agent for service)

Copies to:

Brian D. Miller

Latham & Watkins LLP

555 11th Street, N.W. Suite 1000

Washington, DC 20004

(202) 637-2200

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o

EXPLANATORY NOTE 

On February 26, 2025, the Board of Directors (the “Board”) of Cogent Communications Holdings, Inc. (the “Company”) approved the Second Amended and Restated Cogent Communications Holdings, Inc. 2017 Incentive Award Plan (as amended and restated, the “Plan”), which includes an increase in the number of shares of common stock of the Company, par value $0.001 per share (the “Common Stock”), available for issuance under the Plan by 1,500,000 shares. On May 7, 2025, stockholders voted to approve the Plan. This Registration Statement on Form S-8 is being filed in order to register the 1,500,000 additional shares of Common Stock that may be offered or sold to participants under the Plan, as well 500,000 additional shares of Common Stock that may become available for issuance under the Plan pursuant to its terms.

The Company previously filed registration statements on Form S-8 (File Nos. 333-217608, 333-231145, 333-255712 and 333-271876) registering shares of Common Stock that may be offered or sold to participants under the Plan (collectively, the “Registration Statements”). The contents of the Registration Statements are incorporated by reference herein to the extent not modified or superseded hereby or by any subsequently filed document that is incorporated by reference herein or therein.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The documents containing the information specified in this Part I will be sent to or given by the Company to each recipient of an award under the Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the instructions to Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference 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.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.       Incorporation of Documents by Reference. 

The following documents filed with the Commission by the Company are incorporated herein by reference:

All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement, which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference into this registration statement and to be a part hereof from the date of filing of such document.

We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed above or included in future filings, that are not deemed “filed” with the Commission.

Any statement contained in this registration statement or in a document incorporated or deemed to be incorporated by reference in this registration statement shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in any subsequently filed document that also is or is deemed to be incorporated by reference in this registration statement 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 6.        Indemnification of Directors and Officers.

Section 102 of the General Corporation Law of the State of Delaware (the “DGCL”) allows a corporation to adopt a provision of its certificate of incorporation that limits or eliminates the personal liability of directors and officers of a corporation to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except that no provision may limit or eliminate the liability of (i) a director or officer for a breach of the duty of loyalty, (ii) a director or officer for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) a director for the payment of a dividend or approval of a stock repurchase or redemption in violation of the DGCL, (iv) a director or officer for a transaction from which the director or officer obtained an improper personal benefit, or (v) an officer in an action by or in the right of the corporation, including any derivative action.

Section 145 of the DGCL provides, among other things, that a corporation may 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—other than an action by or in the right of the Company—by reason of the fact that the person is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding. The power to indemnify applies (a) if such person is successful on the merits or otherwise in defense of any action, suit or proceeding or (b) if such person is acting in good faith and in a manner such person reasonably believed to be in the best interest, or not opposed to the best interest, of the Company, and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the Company as well as but only to the extent of defense expenses, including attorneys’ fees actually and reasonably incurred, but does not apply to judgments or amounts paid in settlement, and with the further limitation that in such actions no indemnification of expenses shall be made in the event of any adjudication of liability to the Company, unless the court believes that in light of all the circumstances indemnification should apply.

Our Certificate of Incorporation eliminates the liability of our directors for monetary damages to us and our stockholders to the fullest extent permitted by law. Our Certificate of Incorporation and Bylaws, as amended and restated, provide that we shall indemnify our directors and officers, including when acting as directors, officers, employees and agents of other enterprises, to the fullest extent permitted by the DGCL.

Item 8.       Exhibits.

*      Filed herewith.

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 District of Columbia, on this 8th day of May, 2025.

POWER OF ATTORNEY

We, the undersigned directors and officers of Cogent Communications Holdings, Inc., do hereby constitute and appoint David Schaeffer and Thaddeus Weed, and each of them, our true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to do any and all acts and things in our names and on our behalf in our capacities as directors and officers and to execute any and all instruments for us in the capacities indicated below, which said attorney and agent may deem necessary or advisable to enable said corporation to comply with the Securities Act and any rules, regulations and agreements of the Securities and Exchange Commission, in connection with this Registration Statement, or any registration statement for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, including specifically, but without limitation, any and all amendments (including post-effective amendments) hereto; and we hereby ratify and confirm all that said attorney and agent shall 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 by the following persons in the capacities and on the date indicated.