As filed with the Securities and Exchange Commission on March 31,
1998
Registration No.
333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 of (I.R.S. Employer
Identification No.)
Incorporation or Organization)
10089 Lee Highway
Fairfax, Virginia 22030
(Address of Principal Executive Offices) (Zip Code)
Advanced Communication Systems, Inc., Employee Stock Purchase
Plan
(Full Title of the Plan)
Dev Ganesan
Executive Vice President, Chief Financial Officer and Treasurer
Advanced Communication Systems, Inc.
10089 Lee Highway
Fairfax, Virginia 22030
(Name and Address of Agent for Service)
(703) 934-8130
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Anita J. Finkelstein, Esq.
Venable, Baetjer, Howard & Civiletti, LLP
1201 New York Avenue, N.W., Suite 1000
Washington, D.C. 20005-3917
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title Of Amount Proposed Proposed Amount Of
Securities To Be Maximum Maximum Registration
To Be Registered Offering Aggregate Fee(1)(2)
Registered Price Offering Price
Per (1)(2)
Share(1)(2)
<S> <C> <C> <C> <C>
Common
Stock, $.01 325,000 $10.35 $3,363,750 $992.31
par value
per share
</TABLE>
(1) Estimated solely for the purpose of determining the
Registration Fee.
(2) Calculated (i) pursuant to Rules 457(c) and 457(h)(l) based
upon the average of the high and low prices of the Common
Stock on the Nasdaq National Market on March 26, 1998 and
(ii) pursuant to the Plan, based on 90% of such market
price.
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the
Registrant with the Securities and Exchange Commission (the
"Commission") are incorporated into this Registration Statement
by reference:
(a) The Registrant's Annual Report on Form 10-K for
the year ended September 30, 1997, filed with the
Commission on December 29, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended December 31, 1997, filed with
the Commission on February 17, 1998;
(c) The Registrant's Current Reports on Form 8-K filed
with the Commission on November 17, 1997; November
25, 1997 (Form 8-K/A); December 5, 1997; February
4, 1998 (Form 8-K/A); February 19, 1998, and March
13, 1998; and
(d) The description of the Common Stock set forth
under the heading "Description of Capital Stock"
in Registrant's Registration Statement on Form 8-A
(File No. 0-22737) filed with the Commission on
June 24, 1997 by the Registrant under Section
12(g) of the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") together with any
amendment or report filed with the Commission 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
Exchange Act, 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 this Registration Statement from
the date of filing of such 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 this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated herein by
reference modifies or supersedes such earlier
<PAGE>
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
<PAGE>
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 Amended and Restated
Certificate of Incorporation, which provides in substance that
the Registrant has the power, to the fullest extent permitted by
law as it now exists or as amended, to indemnify each officer and
director against costs and expenses, including attorneys' fees
and disbursements, and any liabilities, including judgments,
fines, penalties, excise taxes and amounts paid in settlement
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 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 Amended and Restated 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 Article VIII of the Registrant's Amended and Restated
Bylaws, generally, the indemnification permitted by the Amended
Certificate of Incorporation is made mandatory with respect to
directors and extended to officers (including former directors
and officers of the Registrant or persons serving or having
served in such capacities for other entities at the request of
the Registrant), in each case in connection with any action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in right of the
Registrant), 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 Registrant, and, with respect to any
criminal action or proceeding, had not reasonable cause to
believe that his or her conduct was unlawful In the case of
actions by or in the right of the Registrant, indemnification is
available under the same standards set forth above, except that,
in addition, (unless a court of competent jurisdiction otherwise
determines) the officer or director seeking indemnification
shall not have been adjudged liable to the Registrant. The
Registrant's Amended and Restated Bylaws limit indemnification in
respect to actions other than those by or in the right of the
Registrant to expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by the director or
<PAGE>
officer seeking indemnification and, in respect of actions by or
in the right of the Registrant, to expenses so incurred. The
Registrant's Amended and Restated 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 Amended and Restated
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.
<PAGE>
Item 8. Exhibits.
4.1 Amended and Restated Certificate of Incorporation
of the Registrant (filed as Exhibit 3.3 to the
Registrant's Registration Statement of Form S-1
(File No. 333-23959) and incorporated by reference
herein).
4.2 Amended and Restated Bylaws of the Registrant
(filed as Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-
23959) and incorporated by reference herein).
5* Opinion of Counsel.
23.1* Consent of Venable, Baetjer, Howard & Civiletti,
LLP.(included in Exhibit 5).
23.2* Consent of Independent Public Accountants.
24* Powers of Attorney (included in signature page).
* Filed herewith.
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
<PAGE>
total dollar value of securities offered
would not exceed that which as 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 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(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 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.
<PAGE>
(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.
<PAGE>
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 Fairfax, in the State of Virginia, on this 30th day
of March, 1998.
ADVANCED COMMUNICATION SYSTEMS, INC.
By: /s/ George A. Robinson
George A. Robinson
Chairman, President and Chief
Executive Officer
(Principal 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 or
supplements) 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.
Signature Title Date
/s/ George A. Chairman, President and March 30, 1998
Robinson Chief Executive Officer
George A. Robinson (Principal Executive
Officer)
/s/ Dev Ganesan Executive Vice March 30, 1998
Dev Ganesan President, Chief
Financial Officer and
Treasurer
(Principal Financial
Officer and Principal
Accounting Officer)
<PAGE>
/s/Thomas A. Costello Director March 30, 1998
Thomas A. Costello
Charles G. Martinache Director March __, 1998
/s/Charles R. Collins Director March 30, 1998
Charles R. Collins
Wayne Shelton Director March __, 1998
<PAGE>
Exhibit Index
Exhibit Number Description
4.1 Amended and Restated Certificate of Incorporation
of the Registrant (filed as Exhibit 3.3 to the
Registrant's Registration Statement on Form S-1
(File No. 333-23959) and incorporated by reference
herein).
4.2 Amended and Restated Bylaws of the Registrant
(filed as Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-
23959) and incorporated by reference herein).
5 Opinion of Counsel
23.1 Consent of Venable, Baetjer and Howard, LLP
(included in their opinion filed as Exhibit 5).
23.2 Consent of Independent Public Accountants.
24 Powers of Attorney (included in signature page).
-2-
EXHIBIT 5_OPINION OF COUNSEL
Venable, Baetjer, Howard & Civiletti, LLP
1201 New York Avenue
Suite 1000
Washington, DC 20005-3917
March 31, 1998
Advanced Communication Systems, Inc.
10089 Lee Highway
Fairfax, Virginia 22030
Ladies and Gentlemen:
We have acted as counsel for Advanced Communication Systems,
Inc. (the "Registrant") in connection with a registration
statement on Form S-8 of the Registrant (the "Registration
Statement"), filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), pertaining to the registration of
325,000 shares of common stock, par value $0.01 per share, of the
Registrant (the "Shares") for issuance and sale pursuant to the
Advanced Communication Systems, Inc. Employee Stock Purchase Plan
(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 or otherwise are
familiar with originals or copies, certified or otherwise
identified to our satisfaction, of the following: (i) the
Registration Statement; (ii) the Certificate of Incorporation and
Bylaws, as amended, of the Registrant, as currently in effect;
(iii) certain resolutions of the Board of Directors of the
Registrant relating to the adoption of the Plan and 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 establish or verify, we have relied upon
statements and representations of officers and other
representatives of the Registrant and others.
Based upon the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and that when sold,
issued, paid for and delivered as contemplated by the Plan, the
Shares will be validly issued, fully paid and nonassessable.
<PAGE>
The law covered by the opinion is limited to the law of the
State of Delaware, without regard to the principles of conflicts
of laws thereof, and based upon and limited to the laws and
regulations in effect as of the date hereof. We assume no
obligation to update the opinion set forth herein.
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, or the Rules and Regulations of the
Commission thereunder.
Very truly yours,
/s/ VENABLE, BAETJER, HOWARD & CIVILETTI, LLP
-1-
EXHIBIT 23.2_CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to
the incorporation by reference in this registration
statement of our report dated November 7, 1997 included in
Advanced Communication Systems, Inc.'s Form 10-K for the
year ended September 30, 1997 and to all references to our
Firm included in this registration statement.
/s/ Arthur Anderson LLP
Washington, DC
March 31, 1998
