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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 1996
REGISTRATION NO. ___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IXC COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
--------------------------------
Delaware 74-2644120
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5000 Plaza on the Lake, Suite 200
Austin, Texas 78746
(512) 328-1112
(Address of Principal Executive Offices)
--------------------------------
IXC COMMUNICATIONS, INC. SPECIAL STOCK PLAN
(Full title of the plan)
--------------------------------
John J. Willingham
Senior Vice President, Chief Financial Officer and Secretary
IXC Communications, Inc.
5000 Plaza on the Lake, Suite 200
Austin, Texas 78746
(512) 427-3737
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------------
COPIES TO:
Michael P. Whalen, Esq.
Karen C. Goodin, Esq.
Riordan & McKinzie
695 Town Center Drive, Suite 1500
Costa Mesa, California 92626
(714) 433-2900
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
TITLE OF PROPOSED PROPOSED
EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE FEE
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share 67,900 $3.01 $204,379 $100
===========================================================================================================
</TABLE>
(1) Pursuant to Rule 416 promulgated under the Securities Act of 1933, as
amended, this Registration Statement covers, in addition to the number
of shares of Common Stock stated above, such additional shares of
Common Stock to be offered or issued to prevent dilution as a result
of future stock dividends or stock splits.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The proposed maximum aggregate offering price
is based upon the actual exercise price of $3.01.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by IXC Communications,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference into this Registration Statement:
(1) The Prospectus used in the United States and Canada of the
Company dated July 2, 1996, as filed with the Commission on July 3, 1996
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (File No.
333-4061).
(2) The description of the Company's Common Stock, beginning on
page 55 of the Prospectus which forms a part of the Company's Amendment No. 2
to Registration Statement on Form S-1, as filed with the Commission on June 28,
1996 (File No. 333-4061), under the caption "Description of Capital Stock."
(3) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1996.
(4) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1996.
(5) All documents subsequently filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, 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 thereof
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, modified or superseded 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.
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company by Riordan & McKinzie, a Professional Law
Corporation ("Riordan & McKinzie"). Carl W. McKinzie, a director and
stockholder of the Company, is a principal of Riordan & McKinzie. The Company
has granted an option covering shares of the Company's common stock to another
principal of Riordan & McKinzie. Also, certain attorneys of Riordan & McKinzie
beneficially own additional shares of the Company's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. Article VII, Section 8 of the
Company's Bylaws provides that the Company shall indemnify its officers,
directors, employees and agents to the fullest extent permitted by the Delaware
General Corporation Law ("DGCL"). Section 145 of the DGCL ("Section 145")
provides that a Delaware corporation has the power to indemnify its officers
and directors in certain circumstances.
Subsection (a) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), against expenses
(including attorneys' fees), judgments, fines and amounts
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paid in settlement actually and reasonably incurred in connection with such
action, suit or proceeding provided that such director or officer acted in good
faith in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer had no cause to believe his
or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that such person acted in any of the capacities set forth
above, against expenses actually and reasonably incurred in connection with the
defense or settlement of such action or suit provided that such director or
officer acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to
which such director or officer shall have been adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery
or the court in which such action was brought shall determine that despite the
adjudication of liability, but in view of all the circumstances of the case,
such director or officer is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall
not be deemed exclusive of any other rights to which the indemnified party may
be entitled; and that the corporation shall have power to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Article Tenth of the Company's Restated Certificate of Incorporation
currently provides that each director shall not 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 to the Company or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) for unlawful payment of dividends or unlawful stock repurchases or
redemptions as provided under Section 174 of the DGCL; or (iv) for any
transaction from which the director derived an improper personal benefit.
The Company carries directors' and officers' liability insurance
covering its directors and officers.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Riordan & McKinzie, a Professional Law Corporation.
23.1 Consent of Riordan & McKinzie, a Professional Law Corporation -
included in Exhibit 5.1.
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on page II-4).
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:
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(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(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;
(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 (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic 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 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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 of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) 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 of 1933 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 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 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
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 City of Austin, State of Texas, on December 19, 1996.
IXC COMMUNICATIONS, INC.
By: /s/ JOHN J. WILLINGHAM
------------------------------
John J. Willingham
Senior Vice President,
Chief Financial Officer
and Secretary
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John J. Willingham and Ralph J. Swett
and each of them, his or her true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, for each person and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other 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 or necessary to be done 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 hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ RALPH J. SWETT Chairman of the Board, Chief Executive December 19, 1996
- -------------------------------------------- Officer, and Director
Ralph J. Swett (Principal Executive Officer)
/s/ JOHN J. WILLINGHAM Senior Vice President, Chief Financial December 19, 1996
- -------------------------------------------- Officer and Secretary (Principal
John J. Willingham Financial and Accounting Officer)
/s/ RICHARD D. IRWIN Director December 19, 1996
- --------------------------------------------
Richard D. Irwin
/s/ WOLFE H. BRAGIN Director December 19, 1996
- --------------------------------------------
Wolfe H. Bragin
/s/ CARL W. MCKINZIE Director December 19, 1996
- --------------------------------------------
Carl W. McKinzie
/s/ JOE C. CULP Director December 19, 1996
- --------------------------------------------
Joe C. Culp
/s/ PHILLIP L. WILLIAMS Director December 19, 1996
- --------------------------------------------
Phillip L. Williams
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Description Numbered
- ------- ----------- ------------
<C> <S> <C>
5.1 Opinion of Riordan & McKinzie, a Professional Law
Corporation
23.1 Consent of Riordan & McKinzie, a Professional Law
Corporation - included in Exhibit 5.1
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on page II-4)
</TABLE>
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EXHIBIT 5.1
RIORDAN & McKINZIE
A PROFESSIONAL LAW CORPORATION
695 TOWN CENTER DRIVE, SUITE 1500
COSTA MESA, CALIFORNIA 92626
December 20, 1996
9-098-001
IXC Communications, Inc.
5000 Plaza on the Lake, Suite 200
Austin, Texas 78746
Ladies and Gentlemen:
You have requested our opinion with respect to the 67,900 shares of common
stock (the "Stock Option Shares") of IXC Communications, Inc., a Delaware
corporation (the "Company"), which are available to be issued upon the exercise
of stock options granted under the Company's Special Stock Plan (the "Plan").
The Stock Option Shares are the subject of a Registration Statement on
Form S-8 (the "Registration Statement"), to which this opinion is attached as
an exhibit, to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
We have examined (i) the Company's Certificate of Incorporation, as
amended and restated and currently in effect, (ii) the Company's Bylaws, as
amended to date, (iii) the Plan, (iv) the Registration Statement and (v) the
originals or copies, certified to our satisfaction, of such records, documents,
certificates, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. We have
also examined the records of corporate proceedings taken in connection with the
adoption of the Plan.
Based upon the foregoing examinations and subject to compliance with the
applicable state securities and "blue sky" laws, we are of the opinion that the
67,900 shares of the Company's common stock, when offered, sold and paid for
pursuant to the exercise of stock options granted pursuant to the Plan, will be
duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ RIORDAN & MCKINZIE
------------------------
Riordan & McKinzie
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the IXC Communications, Inc. Special Stock Plan of
our report dated March 1, 1996, except for Note 18, as to which the date is
June 12, 1996, with respect to the consolidated financial statements included
in the Prospectus of IXC Communications, Inc. made a part of the Company's
Amendment No. 2 to the Registration Statement (Form S-1 No. 333-4061) filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Austin, Texas
December 19, 1996
