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As filed with the Securities and Exchange Commission on September 29, 1999.
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACE*COMM CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C>
MARYLAND 52-1283030
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
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704 QUINCE ORCHARD ROAD
GAITHERSBURG, MARYLAND 20878
(301) 721-3000
(Address and Telephone Number of Principal Executive Offices)
ACE*COMM CORPORATION AMENDED AND RESTATED OMNIBUS STOCK PLAN
(Full title of the Plan)
GEORGE T. JIMENEZ
ACE*COMM CORPORATION
704 QUINCE ORCHARD ROAD
GAITHERSBURG, MARYLAND 20878
(301) 721-3000
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
ARIEL VANNIER, ESQ.
VENABLE, BAETJER AND HOWARD, LLP
1800 MERCANTILE BANK & TRUST BUILDING
TWO HOPKINS PLAZA
BALTIMORE, MD 21201
(410) 244-7400
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CALCULATION OF REGISTRATION FEE
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Amount to Proposed maximum Proposed Amount of
Title of Securities be offering price maximum registration
to be registered registered(1) per share(2) offering price(2) fee
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Common Stock, 1,000,000 $4.1875 $4,187,500 $1,165
par value $.01 per share Shares
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(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers such additional
shares of Common Stock as may become issuable pursuant to stock splits, stock
dividends and the anti-dilution provisions of the ACE*COMM Corporation Amended
and Restated Omnibus Stock Plan.
(2) Calculated solely for the purpose of computing the registration fee pursuant
to Rules 457(c) and (h), based upon the average of the high and low prices of
the Registrant's Common Stock reported on the Nasdaq National Market on
September 24, 1999.
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ACE*COMM Corporation (the "Registrant" or "Company") registered 2,200,000
shares for issuance under the ACE*COMM Corporation Amended and Restated Omnibus
Stock Plan (the "Plan") pursuant to a Registration Statement of Form S-8 that
was filed with the Securities and Exchange Commission (the "Commission") and
became effective on September 16, 1996 (File No. 333-12107), which Registration
Statement is incorporated herein by reference.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Commission
by the Registrant are incorporated herein by reference:
(1) The Registrant's most recent annual report on Form 10-K, filed with the
Commission on September 28, 1999 (File No. 0-21059), which contains
audited financial statements for the fiscal year ended June 30, 1999;
(2) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed to update the description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or 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 filing of such
documents.
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 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 a party by reason of
their services in those or other capacities, unless it is established that: (1)
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; or (2) the director or officer actually
received an improper personal benefit in money, property or services; or (3) in
the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. 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 (1) 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 (2) 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 VIII 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.
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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 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.
Section 5. Limitation of Liability of Directors and Officers.
To the maximum extent that limitations on the liability of
directors and officers are permitted by the Maryland General Corporation Law, as
from time to time amended, no director or officer of the Corporation shall have
any liability to the Corporation or its stockholders for money damages. This
limitation on liability applies to events occurring at the time a person serves
as a director or officer of the Corporation whether or not such person is a
director or officer at the time of any proceeding in which liability is
asserted.
Section 6. Effect of Amendment or Repeal.
No amendment, modification or repeal of this charter, nor the
adoption of any additional provision of this charter or the By-laws nor, to the
fullest extent permitted by the Maryland General Corporation Law, any amendment,
modification or repeal of law shall eliminate or reduce the effect of the
provisions in this charter limiting liability or indemnifying certain persons or
adversely affect any right or protection then existing thereunder in respect of
any acts or omissions occurring prior to such amendment, modification, repeal,
or adoption.
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Item 8. Exhibits.
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4.1 - Articles of Amendment and Restatement dated August 19, 1996
(incorporated herein by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-8 (File No.
333-12107)) and Articles of Amendment and Articles
Supplementary dated October 15, 1996 (incorporated herein by
reference to Exhibit 3.5 to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1998 (File No.
0-21059)).
4.2 - Amended and Restated Bylaws, as amended through July 26,
1996 (incorporated herein by reference to Exhibit 4.2 to the
Company's Registration Statement on Form S-8 (File No.
333-12107)).
5.1 - Opinion of Venable, Baetjer and Howard, LLP (filed herewith).
23.1 - Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 - Consent of Ernst & Young LLP (filed herewith).
23.3 - Consent of Venable, Baetjer and Howard, LLP (contained in
Exhibit 5.1).
24.1 - Power of Attorney.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 the city of Gaithersburg in the
State of Maryland on this 29th day of September, 1999.
ACE*COMM CORPORATION
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George T. Jimenez
Chief Executive Officer
(Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS that the undersigned Directors of ACE*COMM
CORPORATION, a Maryland Corporation, hereby constitute and appoint GEORGE T.
JIMENEZ and S. JOSEPH DORR, or either of them acting alone, the true and lawful
agents and attorneys in fact of the undersigned in each case with full power and
authority in either of said agents and attorneys in fact, 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, as amended, 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 indicated on this 29th day of September, 1999.
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Signature Capacity
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- ------------------------------------ Chief Executive Officer and Director
/s/George T. Jimenez (Principal Executive Officer)
- ------------------------------------ Executive Vice President - Finance and
/s/James K. Eckler Administration
(Principal Financial Officer)
- ------------------------------------ Director
/s/Paul G. Casner, Jr.
- ------------------------------------ Director
/s/Gilbert A. Wetzel
- ------------------------------------ Director
/s/William R. Newlin
- ------------------------------------ Director
/s/Harry M. Linowes
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EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION
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4.1 Articles of Amendment and Restatement dated August 19, 1996
(incorporated herein by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-8 (File No.
333-12107)) and Articles of Amendment and Articles
Supplementary dated October 15, 1996 (incorporated herein by
reference to Exhibit 3.5 to the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1998 (File
No. 0-21059)).
4.2 Amended and Restated Bylaws, as amended through July
26, 1996 (incorporated herein by reference to Exhibit
4.2 to the Company's Registration Statement on Form
S-8 (File No. 333-12107)).
5.1 Opinion of Venable, Baetjer and Howard, LLP (filed herewith).
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Ernst & Young LLP (filed herewith).
23.3 Consent of Venable, Baetjer and Howard, LLP (contained in
Exhibit 5.1).
24.1 Power of Attorney (contained in the signature page).
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Exhibit 5.1
September 29, 1999
ACE*COMM Corporation
704 Quince Orchard Road
Gaithersburg, Maryland 20878
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to ACE*COMM Corporation, a Maryland
corporation (the "Corporation"), in connection with a registration statement on
Form S-8 filed with the Securities and Exchange Commission (the "Registration
Statement") pertaining to the registration of up to 1,000,000 shares of its
Common Stock, $0.01 par value per share (the "Common Stock"), for issuance and
sale pursuant to the Corporation's Amended and Restated Omnibus Stock Plan (the
"Plan").
In that connection, we have examined originals or copies of such
documents, corporate records and other instruments as we have deemed necessary
or appropriate for purposes of this opinion including, but not limited to, the
following: (i) the Registration Statement; (ii) the Articles of Incorporation
and the Bylaws of the Corporation, as amended and as currently in effect; (iii)
the Plan; (iv) certain resolutions of the Board of Directors of the Corporation
relating to the issuance of the Common Stock and the other transactions
contemplated by the Registration Statement; (v) a Certificate of Good Standing
from the State Department of Assessments and Taxation of the State of Maryland;
and (vi) such other documents as we have deemed necessary or appropriate as a
basis for the opinion set forth below. We have assumed, without independent
verification, the genuineness of signatures, the authenticity of documents and
the conformity with originals of copies.
Based on the foregoing, we are of the opinion that the Common Stock has
been duly authorized for issuance and when sold, issued and paid for as
contemplated in the Registration Statement, will have been validly issued and
will be fully paid and non-assessable shares of Common Stock of the Corporation
under the laws of the State of Maryland.
We are members of the Bar of the State of Maryland and the opinions
expressed herein are limited to the corporate laws of Maryland pertaining to
matters such as the issuance of stock, but not including the "securities" or
"blue sky" law of the state.
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We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. By giving the foregoing consent, we do not admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933.
Very truly yours,
/S/ Venable, Baetjer and Howard, LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 29, 1998 relating to the
financial statements, which appears in ACE*COMM Corporation's Annual Report on
Form 10-K for the year ended June 30, 1999.
/s/ PricewaterhouseCoopers LLP
Washington, D.C.
September 29, 1999
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Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333- ____) pertaining to the Company's Amended and Restated Omnibus
Stock Plan of our report dated August 25, 1999, with respect to the financial
statements and schedule of ACE*COMM Corporation included in the Annual Report
(Form 10-K) for the year ended June 30, 1999.
/s/ Ernst & Young LLP
Washington, DC
September 24, 1999
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