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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 31, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACE*COMM CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 52-1283030
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
209 PERRY PARKWAY
GAITHERSBURG, MARYLAND 20877
(Address of Principal Executive Offices) (Zip Code)
ACE*COMM CORPORATION AMENDED AND RESTATED STOCK OPTION PLAN FOR DIRECTORS
(Full title of the plan)
GEORGE T. JIMENEZ
ACE*COMM CORPORATION
209 PERRY PARKWAY
GAITHERSBURG, MARYLAND 20877
(Name and address of agent for service)
(301) 258-9850
(Telephone number, including area code, of agent for service)
Copy to:
ARIEL VANNIER, ESQ.
VENABLE, BAETJER AND HOWARD, LLP
1800 MERCANTILE BANK AND TRUST BUILDING
TWO HOPKINS PLAZA
BALTIMORE, MARYLAND 21201-2978
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed maximum Proposed maximum Amount of
Securities to be to be offering price aggregate Registration Fee
registered registered per share* offering price*
<S> <C> <C> <C> <C>
Common Stock, par
value $0.01 per
share 200,000 $10.5625 $2,112,500 $728.45
</TABLE>
* Calculated solely for the purpose of computing the registration fee
pursuant to Rules 457(c) and (h), based upon the average of the bid
and asked price as of October 30, 1996.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by ACE*COMM Corporation,
the Registrant with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference:
(a) The Registrant's Prospectus dated August 13, 1996 filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended,
which contains audited financial statements for the Registrant's
latest fiscal year;
(b) Description of common stock, par value $0.01 per share, of the
Registrant contained or incorporated in the Registration
Statement on Form 8-A (File No. 21059) filed by the Registrant
under Section 12(g) of the Securities Exchange Act of 1934, as
amended, including any amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, 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 into this Registration Statement and to be a part of the Registration
Statement from the date of filing of 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 2-418 of the Corporations and Associations Article of the
Annotated Code of Maryland permits a corporation to indemnify its present and
former directors, 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 a party by reason of their
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services in those or other capacities, unless it is established that (a) the
act or omission of the director or officer was material to the matter giving
rise to such proceeding and (i) was committed in bad faith or (ii) was the
result of active and deliberate dishonesty; or (b) the director or officer
actually received an improper personal benefit in money, property, or services;
or (c) in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful. Maryland
law permits a corporation to indemnify a present and former officer to the same
extent as a director, and to provide additional indemnification to an officer
who is not also a director. In addition, Section 2-418(f) of the Corporations
and Associations Article of the Annotated code of Maryland permits a
corporation to pay or reimburse, in advance of the final disposition of a
proceeding, reasonable expenses (including attorney's fees) incurred by a
present or former director or officer made a party to the proceeding by reason
of his service in that capacity, provided that the corporation shall have
received (a) a written affirmation by the director or officer of his good faith
belief that he has met the standard of conduct necessary for indemnification by
the corporation; and (b) a written undertaking by or on his behalf to repay the
amount paid or reimbursed by the corporation if it shall ultimately be
determined that the standard of conduct was not met.
The Registrant has provided for indemnification of directors,
officers, employees, and agents in Article VII of its charter, as amended.
This provision reads as follows:
Section 1. Mandatory Indemnification.
The Corporation shall indemnify its currently acting and its former
directors and officers against any and all liabilities and expenses
incurred in connection with their services in such capacities to the
maximum extent permitted by the Maryland General Corporation Law, as from
time to time amended.
Section 2. Discretionary Indemnification.
If approved by the Board of Directors, the Corporation may indemnify
its employees, agents and persons who serve and have served, at its request
as a director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture or other enterprise or employee
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benefit plan to the extent determined to be appropriate by the Board of
Directors.
Section 3. Advancing Expenses Prior to a Decision.
The Corporation shall advance expenses to its directors and officers
entitled to mandatory indemnification to the maximum extent permitted by
the Maryland General Corporation Law, as from time to time amended, and may
in the discretion of the Board of Directors advance expenses to employees,
agents and others who may be granted indemnification.
Section 4. Other Provisions for Indemnification.
The Board of Directors may, by bylaw, resolution or agreement, make
further provision for indemnification of directors, officers, employees and
agents.
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
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 assured 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 of
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.
Under Maryland law, a corporation is permitted to limit by provision
in its charter the liability of directors and officers, so that no director or
officer of the corporation shall be liable to the corporation or to any
stockholder for money damages except to the extent that (i) the director or
officer actually received an improper benefit in money property, or services,
for the amount of the benefit or profit in money,
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property or services actually received, or (ii) a judgment or other final
adjudication adverse to the director or officer is entered in a proceeding
based on a finding in the proceeding that the director's or officer's action,
or failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding.
The Registrant has limited the liability of its directors and officers
for money damages in Article VIII of its charter, as amended. This provision
reads as follows:
Section 5. Limitation of Liability of Directors and Officers.
To the fullest extent that limitations on the liability of directors
and officers are permitted by the Maryland General Corporation Law, no director
or officer of the Company shall have any liability to the Company or its
stockholders for damages. This limitation on liability applies to events
occurring at the time a person serves as a director or officer of the Company,
whether or not such person is serving as such at the time of any proceeding in
which liability is asserted.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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<S> <C>
4.1 Articles of Amendment and Restatement dated August 19, 1996 (filed as
Exhibit 4.1 to the Registrant's Registration Statement on Form S-8
(No. 333-12107) and incorporated by reference herein).
4.2 Amended and Restated Bylaws, as amended through July 26, 1996(filed as
Exhibit 4.2 to the Registrant's Registration Statement on Form S-8
(No. 333-12107) and incorporated by reference herein).
5* Opinion of Venable, Baetjer and Howard, LLP.
23.1* Consent of Price Waterhouse LLP.
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23.2* Consent of Venable, Baetjer and Howard, LLP (included in their
opinion filed as Exhibit 5).
24* Powers of Attorney (included in signature page).
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___________
* filed herewith
ITEM 9. UNDERTAKINGS.
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
which, individually or together, represent a fundamental change in the
information in the Registration Statement;
(iii) To include any additional or changed material
information on the plan of distribution;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Sections 13 or 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.
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
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Sections 13(a) or 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 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.
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 of
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, ACE*COMM Corporation, 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 Gaithersburg, Maryland, on this 30th
day of October, 1996.
ACE*COMM CORPORATION
By: /s/ George T. Jimenez
George T. Jimenez
President and
Chief Executive Officer
(PRINCIPAL EXECUTIVE OFFICER)
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KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints George T. Jimenez or S. Joseph Dorr, or any one of
them acting singly, his or her true and lawful agents and attorneys-in-fact
with full power and authority in said agents and attorneys-in-fact, or any of
them, to sign for the undersigned and in his or her name, in the capacity
indicated opposite his or her name, this Registration Statement of ACE*COMM
Corporation on Form S-8 (and any pre-effective or post-effective amendment or
supplement to such Registration Statement) to be filed under the Securities Act
of 1933, with the Securities and Exchange Commission.
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.
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SIGNATURE TITLE DATE
<S> <C> <C>
/s/ George T. Jimenez President, Chief Executive October 30, 1996
George T. Jimenez Officer, and Director
(PRINCIPAL EXECUTIVE OFFICER)
/s/ Paul G. Casner, Jr. Director October 30, 1996
Paul G. Casner, Jr.
/s/ Gary P. Golding Director October 30, 1996
Gary P. Golding
/s/ Gilbert A. Wetzel Director October 30, 1996
Gilbert A. Wetzel
/s/ Jeffrey S. Simpson Vice President - Finance
Jeffrey S. Simpson (PRINCIPAL FINANCIAL OFFICER) October 30, 1996
</TABLE>
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EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION
<S> <C>
4.1 Articles of Amendment and Restatement dated August 19, 1996 (filed as
Exhibit 4.1 to the Registrant's Registration Statement on Form S-8
(No. 333-12107) and incorporated by reference herein).
4.2 Amended and Restated Bylaws, as amended through July 26, 1996 (filed
as Exhibit 4.2 to the Registrant's Registration Statement on Form S-8
(No. 333-12107) and incorporated by reference herein).
5 Opinion of Venable, Baetjer and Howard, LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Venable, Baetjer and Howard, LLP (included in their opinion
filed as Exhibit 5).
24 Powers of Attorney (included in signature page).
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Exhibit 5
Venable, Baetjer and Howard, LLP
1800 Mercantile Bank and Trust Building
Two Hopkins Plaza
Baltimore, Maryland 21201
October 31, 1996
ACE*COMM Corporation
209 Perry Parkway
Gaithersburg, Maryland 20877
Gentlemen:
We have acted as counsel for ACE*COMM Corporation (the "Corporation") in
connection with a registration statement on Form S-8 of the Corporation filed
with the Securities and Exchange Commission (the "Registration Statement"),
pertaining to the registration of 200,000 shares of common stock (par value
$0.01 per share) of the Corporation (the "Shares") for issuance and sale
pursuant to the Corporation's Amended and Restated Stock Option Plan for
Directors (the "Plan").
In connection with this opinion, we have considered such questions of law
as we have deemed necessary as a basis for the opinions set forth below, and
we have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of the following: (i) the
Registration Statement; (ii) the Charter and By-Laws of the Corporation, as
amended and as currently in effect; (iii) certain resolutions of the Board of
Directors of the Corporation relating to the issuance of the Shares and the
other transactions contemplated by the Registration Statement; (iv) the Plan;
and (v) such other documents as we have deemed necessary or appropriate as a
basis for the opinion set forth below. In our examination, we have assumed
the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. As to any facts material to
this opinion that we did not independently
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establish or verify, we have relied upon statements and representations of
officers and other representatives of the Corporation and others.
Based upon the foregoing, we are of the opinion that when sold, issued
and paid for as contemplated in the Registration Statement, the Shares will
be validly issued and will be fully paid and nonassessable.
The law covered by the opinion set forth above is limited to the law of
the State of Maryland and the federal law of the United States of America.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ VENABLE, BAETJER AND HOWARD, LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated July 17, 1996, except as
to the stock split described in Note 11 which is as of August 5, 1996, which
appears on page F-2 of the Amended Registration Statement on Form S-1 of
ACE*COMM Corporation dated August 12, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Washington, D.C.
October 31, 1996
