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As filed with the Securities and Exchange Commission on October 10, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ADVANCED COMMUNICATION SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 54-1421222
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
10089 LEE HIGHWAY 22030
FAIRFAX, VA (Zip Code)
(Address of Principal Executive Offices)
ADVANCED COMMUNICATION SYSTEMS, INC. 1996 STOCK INCENTIVE PLAN; AND
ADVANCED COMMUNICATION SYSTEMS, INC. 1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
GEORGE A. ROBINSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ADVANCED COMMUNICATION SYSTEMS, INC.
10089 LEE HIGHWAY
FAIRFAX, VA 22030
(Name and Address of Agent for Service)
(703) 934-8130
(Telephone Number, Including Area Code, of Agent for Service)
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Copies to:
PETER J. WALLISON, ESQ.
GIBSON, DUNN & CRUTCHER LLP
1050 CONNECTICUT AVENUE, NW, SUITE 900
WASHINGTON, DC 20036
(202) 955-8500
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PRICE PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share. . . . 342,700 N/A $4,026,725 (2) $1,220.22 (3)
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Common Stock, par value
$.01 per share. . . . 148,000 (4) $4.44 $657,120 $199.13
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Common Stock, par value
$.01 per share. . . . 115,000 (4) $6.50 $747,500 $226.52
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Common Stock, par value
$.01 per share. . . . 81,100 (5) $7.50 $608,250 $184.32
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Common Stock, par value
$.01 per share. . . . 26,200 (4) $9.875 $258,725 $78.40
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TOTAL: 713,500 $6,298,320 $1,908.59
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</TABLE>
(1) Pursuant to Rule 416(a), also covers additional securities that may be
offered as a result of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Calculated pursuant to Rules 457(c) and 457(h)(1) based upon the average
of the high and low prices of the Common Stock on the Nasdaq National Market
on October 8, 1997, which was $11.75.
(4) This subtotal represents the sum of shares that have not previously been
registered that are issuable upon exercise of presently outstanding options
under the Advanced Communication Systems, Inc. 1996 Stock Incentive Plan.
(5) This subtotal represents the sum of shares that have not previously been
registered that are issuable upon exercise of presently outstanding options
under the Advanced Communication Systems, Inc. 1997 Stock Incentive Plan.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) The Registrant's Registration Statement on Form S-1 (Registration No.
333-23959) as filed with the Commission on March 26, 1997, as amended,
which includes the Registrant's balance sheets as of September 30, 1995 and
1996, and the related statements of operations, stockholders' equity and
cash flows for each of the three years in the period ended September 30,
1996;
(2) the Registrant's quarterly report on Form 10-Q for the quarter ended June
30, 1997, filed on August 14, 1997; and;
(3) The description of the Common Stock set forth under the caption
"Description of Capital Stock" in the Registrant's registration statement
on Form 8-A (File No. 0-22737) as filed with the Commission on June 24,
1997, together with any amendment or report filed with the Commission for
the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all such 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 reports and documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of
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this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such earlier statement.
Any 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.
Section 145 ("Section 145") of the Delaware General Corporation Law,
as amended, provides a detailed statutory framework covering indemnification of
officers and directors against liabilities and expenses arising out of legal
proceedings brought against them by reason of their being or having been
directors or officers. Section 145 generally provides that a director or officer
of a corporation (i) shall be indemnified by the corporation for all expenses of
such legal proceedings when he or she is successful on the merits, (ii) may be
indemnified by the corporation for the expenses, judgments, fines and amounts
paid in settlement of such proceedings (other than a derivative suit), even if
he or she is not successful on the merits, if he or she 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, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful,
and (iii) may be indemnified by the corporation for the expenses of a derivative
suit (a suit by a stockholder alleging a breach by a director or officer of a
duty owed to the corporation), even if he or she is not successful on the
merits, if he or she 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. No
indemnification may be made under clause (iii) above, however, if the director
or officer is adjudged liable for negligence or misconduct in the performance of
his or her duties to the corporation, unless a corporation determines that,
despite such adjudication, but in view of all the circumstances, he or she is
entitled to indemnification. The indemnification described in clauses (ii) and
(iii) above may be made only upon a determination that indemnification is proper
because the applicable standard of conduct has been met. Such a determination
may be made by a majority of a quorum of disinterested directors, independent
legal counsel, the stockholders or a court of competent jurisdiction.
The indemnification of officers and directors is provided for by
Article Sixth of the Registrant's Certificate of Incorporation which provides in
substance that, to the fullest extent permitted by Delaware law as it now exists
or as amended, each officer and director shall be indemnified against reasonable
costs and expenses, including attorney's fees and disbursements, and any
liabilities which he or she may incur in connection with any action to which he
or she may be made a party by reason of his or her being or having been an
officer
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or director of the Registrant, or serving or having served in any capacity at
the request of the Registrant for any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. The indemnification
provided by the Registrant's Certificate of Incorporation is not deemed
exclusive of or intended in any way to limit any other rights to which any
person seeking indemnification may be entitled.
Under the Registrant's Bylaws, similar indemnity is permitted to be
provided to each officer and director in connection with an action or suit by or
in right of the corporation, provided such officer or director acted in good
faith and in a manner he or she believed to be in or not opposed to the best
interests of the corporation, and provided further (unless a court of competent
jurisdiction otherwise determines) that such officer or director shall not have
been adjudged liable to the corporation. The Registrant's Bylaws also provide
for the advancement of certain expenses upon a determination by the Board of
Directors.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to provide in its Certificate of Incorporation that a
director of the corporation shall not be personally liable to the corporation 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 corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
Article Ninth of the Registrant's Certificate of Incorporation
provides for the elimination of personal liability of a director for breach of
fiduciary duty, as permitted by Section 102(b)(7) of the Delaware General
Corporation Law.
The Registrant has entered into indemnification agreements with
certain of its officers and directors pursuant to which it has agreed to
indemnify such officers and directors against judgments, claims, damages, losses
and expenses incurred as a result of the fact that any director or officer, in
his or her capacity as such, is made or threatened to be made a party to any
suit or proceeding. The indemnification agreements provide for the advancement
of certain expenses to officers and directors in connection with any such suit
or proceeding.
The Registrant maintains liability insurance in the amount of $5
million insuring its officers and directors against liabilities that they may
incur in such capacities, including liabilities arising under the Federal
securities laws other than liabilities arising out of the filing of a
registration statement with the Securities and Exchange Commission.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Registrant with the Commission, each of the following
exhibits is filed herewith:
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5).
23.2 Consent of Arthur Anderson LLP (independent auditors).
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) 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 of 1933, as amended (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 and 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 a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
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 (1)(a)(i) and (1)(a)(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 Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) 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
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offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
(3) Insofar as indemnification for liabilities arising under the Securities
Act 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 the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, there-unto duly
authorized, in the City of Fairfax, State of Virginia, on this 10th day of
October, 1997.
ADVANCED COMMUNICATION SYSTEMS,
INC.
By:
/s/
-------------------------------------
George A. Robinson
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints George A.
Robinson and Dev Ganesan, and each of them, his or her true and lawful
attorney-in-fact, each with full power of substitution and resubstitution,
severally, for him and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective 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 attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ President, October 10, 1997
- ---------------------- Chief Executive Officer,
George A. Robinson and Chairman of the Board
(Principal Executive Officer)
/s/ Chief Financial Officer October 10, 1997
- ---------------------- (Principal Financial Officer
Dev Ganesan and Principal Accounting
Officer)
/s/ Director October 10, 1997
- ---------------------
Charles R. Collins
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Director October 10, 1997
- ------------------------
Thomas A. Costello
/s/ Director October 10, 1997
- ------------------------
Charles G. Martinache
/s/ Director October 10, 1997
- ------------------------
Wayne Shelton
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Sequentially
- ------- ---------------------------------------------- -------------
Number Numbered Page
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<S> <C>
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP
(included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP
(independent auditors).
</TABLE>
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EXHIBIT 5
October 10, 1997
C 00388-00002
Advanced Communication Systems, Inc.
10089 Lee Highway
Fairfax, VA 22030
Re: Proposed Offering of up to 713,500 Shares of Common Stock
Ladies and Gentlemen:
We refer to an aggregate of 713,500 shares of Common Stock, par value
$.01 per share, of Advanced Communication Systems, Inc., a Delaware corporation
(the "Company"), which are the subject of a registration statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"). The shares of Common Stock (the "Shares") subject to the Registration
Statement are to be issued under the Company's 1996 Stock Incentive Plan and the
Company's 1997 Stock Incentive Plan (together, the "Plans").
We have examined the original, or a photostatic or certified copy, of
such records of the Company, certificates of officers of the Company and of
public officials and such other documents as we have determined relevant and
necessary as the basis for the opinion set forth below. In such 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.
Based upon our examination mentioned above, we are of the opinion that
the Shares have been validly authorized for issuance and, when issued and sold
in accordance with the terms set forth in the Registration Statement and the
Plans, and, when (a) the Registration Statement has become effective under the
Act, (b) the pertinent provisions of any applicable state securities law have
been complied with, and (c) in the case of options issued under the Plans, the
Shares have been paid for, the Shares so issued will be legally issued and will
be fully paid and nonassessable.
<PAGE> 2
Advanced Communication Systems, Inc.
October 10, 1997
Page 2
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm appearing on the cover
of the Registration Statement. In giving this consent, we do not admit that we
are within the category of persons whose consent is required under Section 7 of
the Act or the General Rules and Regulations of the Commission.
Very truly yours,
/s/
GIBSON, DUNN & CRUTCHER LLP
PJW/ROM/SSS
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated June 25, 1997
included in Advanced Communication Systems, Inc.'s Form S-1 (File No.
333-23959) for the years ended September 30, 1994, 1995 and 1996 and to all
references to our Firm included in this registration statement.
/s/
ARTHUR ANDERSEN LLP
Washington, D.C.
October 9, 1997
