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As filed with the Securities and Exchange Commission on July 16, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------
CONSOLIDATION CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 52-2054952
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
800 Connecticut, Avenue, N.W., Suite 1111 20006
Washington, DC (Zip Code)
(Address of principal executive offices)
OPTION AGREEMENTS
(Full title of the plans)
JONATHAN J. LEDECKY
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
CONSOLIDATION CAPITAL CORPORATION
800 CONNECTICUT AVENUE, N.W., SUITE 1111
WASHINGTON, D.C. 20006
(Name and address of agent for service)
202-261-6000
(Telephone number, including area code, of agent for service)
-----------------------
Copy of all communications to:
F. TRAYNOR BECK, ESQ. LINDA L. GRIGGS, ESQ.
EXECUTIVE VICE PRESIDENT, MORGAN, LEWIS & BOCKIUS LLP
GENERAL COUNSEL AND SECRETARY 1800 M STREET, N,W.
CONSOLIDATION CAPITAL CORPORATION WASHINGTON, D.C. 20036
800 CONNECTICUT AVENUE, N.W., SUITE 1111 201-467-7000
WASHINGTON, D.C. 20006
202-261-6000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE OFFERING PRICE FEE
=====================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share....... 403,389 $4.84 $1,952,403 $591.64
- --------------------------------------------------------------------------------------------------------------------
Common Stock, par value, $.001 per share...... 596,611 $23.625(2) $14,094,934 $4,271.19
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(1) Pursuant to Rule 416(a), the number of shares being registered shall be
adjusted to include any additional shares which may become issuable as a
result of stock splits, stock dividends, or similar transactions in
accordance with anti-dilution provisions of the option agreements.
(2) Calculated pursuant to Rule 457(c) and (h), based upon the average of the
reported high and low sales prices for the Common Stock as reported on the
Nasdaq National Market for July 9, 1998.
<PAGE>
EXPLANATORY NOTE
This registration statement on Form S-8 relates to 1,000,000 shares of
Common Stock which may be offered and sold in connection with the exchange or
assumption of options held by employees of companies that Consolidation Capital
Corporation has acquired or may in the future acquire.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the introductory
Note to Part I of Form S-8.
I-2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") are incorporated by reference in this
Registration Statement:
(a) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998;
(b) The Company's Current Reports on Form 8-K dated May 22, 1998, March 11,
1998 (as amended), February 4, 1998, and January 9, 1998;
(c) The Company's Annual Report on Form 10-K for the year ended December 31,
1997;
(d) The Company's preliminary proxy statement filed on June 8, 1998; and
(e) The description of the Company's Common Stock under the caption
"Description of Registrant's Securities to be Registered" in the Company`s
Form 8-A dated November 25, 1997.
All reports and other documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this Registration Statement, and prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be part hereof
from the date of filing of such documents. Each document incorporated by
reference into this Registration Statement shall be deemed to be a part of this
Registration Statement from the date of the filing of such document with the
Commission until the information contained therein is superseded or updated by
any subsequently filed document which is incorporated by reference into this
Registration Statement.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that is also incorporated by reference herein) modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
II-1
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation, in its certificate of incorporation, to limit or
eliminate, subject to certain statutory limitations, the liability of directors
to the corporation or its stockholders for monetary damages for breaches of
fiduciary duty, except for liability (a) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (b) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the DGCL, or (d) for any transaction from which
the director derived an improper personal benefit. Article 10 of the Company's
Restated Certificate of Incorporation provides that the personal liability of
directors of the Company is eliminated to the extent permitted by Section
102(b)(7) of the DGCL.
Section 145 of the DGCL (i) requires a corporation to indemnify for
expenses, including attorney's fees, incurred by a director or officers who has
been successful in defending any claim or proceeding in which the director or
officer is involved because of his or her position with the corporation, (ii)
permits indemnification (a) for judgments, fines, expenses and amounts paid in
settlement in the case of a claim by a party other than the corporation or in
the right of the corporation, even where a director or officer has not been
successful, in cases where the director or officer acted in good faith and in a
manner that he or she reasonably believed was in or not opposed to the best
interests of the corporation provided, in the case of a criminal proceeding,
that the director or officer had no reason to believe his or her conduct was
unlawful or (b) for expenses in the case of a claim or proceeding by or in the
right of the corporation, including a derivative suit (but not judgments, fines
or amounts in settlement), if the 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 and has not been adjudged liable to the corporation
unless a court determines that, despite such adjudication but in view of all of
the circumstances, he or she is entitled to indemnification, and (iii) permits
the advancement of expenses to directors and officers who are defending an
action, lawsuit or proceeding upon receipt of an undertaking for the repayment
of such advance if it is ultimately determined that the director or officer has
not met the applicable standard of conduct and is, therefore, not entitled to be
indemnified. Section 145 also provides that the permissive indemnification
described above is to be made upon a determination that the director or officer
has met the required standard of conduct by (a) a majority of disinterested
directors, (b) a committee of disinterested directors designated by a majority
of such directors, (c) independent legal counsel or (d) the stockholders.
The Company has entered into Indemnity Agreements because the Board
believes that the Company's directors' and officers' insurance does not fully
protect the directors and executive officers and that the absence of Indemnity
Agreements may threaten the quality and stability of the governance of the
Company by reducing the Company's ability to attract and retain qualified
persons to serve as directors and executive officers of the Company, and by
deterring such persons in the making of entrepreneurial decisions for fear of
later legal challenge. In addition, the Board of Directors believes that the
Indemnity Agreements complement the indemnification rights and liability
protections currently provided directors and executive officers of the Company
under the Amended and Restated Bylaws. These rights and protections were
designed to enhance the Company's ability to attract and retain highly qualified
individuals to serve as directors and executive officers in view of the high
incidence of litigation, often involving large amounts, against publicly-held
companies and the need to provide such persons with reliable knowledge of the
legal risks to which they are exposed. The Indemnity Agreements complement these
rights and protections by providing directors and executive officers with
contractual rights to indemnification, regardless of any amendment to or repeal
of the indemnification provisions in the Bylaws. The Company's Amended and
Restated Bylaws provide that the Company shall indemnify to the fullest extent
authorized or permitted by law directors and officers of the Company who have
been made or threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by reason of the fact that he or she is or
was a director or officer of the Company.
The Indemnity Agreements are predicated upon Section 145(f) which
recognizes the validity of additional indemnity rights granted by contractual
agreement. The Indemnity Agreements alter or clarify statutory indemnity
provisions, in a manner consistent with the Company's Amended and Restated
Bylaws, in the following respects; (i) indemnification is mandatory, rather than
optional, to the full extent permitted by law, including partial indemnification
II-2
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under appropriate circumstances, except that the Company is not obligated to
indemnify an indemnitee with respect to a proceeding initiated by the indemnitee
(unless the Board should conclude otherwise), payments made by an indemnitee in
a settlement effected without the Company's written consent, payments that are
found to violate the law, conduct found to constitute bad faith or active and
deliberate dishonesty or short-swing profit liability under Section 16(b) of the
Exchange Act or to the extent that indemnification has been determined to be
unlawful in an arbitration proceeding conducted pursuant to the provisions of
the Indemnity Agreement; (ii) prompt payment of litigation expenses in advance
is mandatory, rather than optional, provided the indemnitee undertakes to repay
such amounts if it is ultimately determined that the indemnitee is not entitled
to be indemnified and provided the indemnitee did not initiate the proceeding;
(iii) any dispute arising under the Indemnity Agreement is to be resolved
through an arbitration proceeding, which will be paid for by the Company unless
the arbitrator finds that the indemnitee's claims or defenses were frivolous or
in bad faith, unless such arbitration is inconsistent with an undertaking given
by the Company, such as to the Securities and Exchange Commission, that the
Company will submit to a court the question of indemnification for liabilities
under the Securities Act of 1933, as amended, and be governed by the final
adjudication of such issue; and (iv) mandatory indemnification shall be paid
within 45 days of the Company's receipt of a request for indemnification unless
a determination is made that the indemnitee has not met the relevant standards
for indemnification by the Board of Directors, or if a quorum of the directors
is not obtainable, at the election of the Company, either by independent legal
counsel or a panel of arbitrators.
The Company maintains a directors' and officers' liability insurance policy
covering certain liabilities which may be incurred by directors and officers in
connection with the performance of their duties. The entire premium for such
insurance is paid by the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
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The following exhibits are filed herewith or incorporated by reference as
part of this Registration Statement:
Exhibit
Number Exhibit
- ------ -------
4.1 Restated Certificate of Incorporation of Consolidation Capital
Corporation (Exhibit 3.01 to the Company's Registration Statement on
Form S-1, as amended (File No. 333-36193) is hereby incorporated by
reference)
4.2 Amended and Restated Bylaws of Consolidation Capital Corporation
(Exhibit 3.02 to the Company's Registration Statement on Form S-1, as
amended (File No. 333-36193) is hereby incorporated by reference)
5 Opinion of Morgan, Lewis & Bockius LLP as to the legality of the
shares being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (contained in Exhibit 5)
24 Power of Attorney (included on signature page)
II-3
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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 of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent post-
effective amendment to the Registration Statement) 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 (a)(1)(i) and (a)(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
Section 13 or Section 15(d) of the Exchange Act 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 Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, 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 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
persons 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.
II-4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this registration statement on to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Washington, District of
Columbia, on July 10, 1998.
CONSOLIDATION CAPITAL CORPORATION
By: /s/ Jonathan J. Ledecky
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Jonathan J. Ledecky
Chairman and Chief Executive Officer
Each person whose signature appears below hereby appoints Jonathan J.
Ledecky and F. Traynor Beck, and both of them, either of whom may act without
the joinder of the other, as his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and any
registration statements for the same offering filed pursuant to Rule 462 under
the Securities Act of 1933, and to file the same, with all exhibits thereto and
all other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents full power and authority to perform each and
every act and thing appropriate or necessary to be done, as full and for 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 their 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/ Jonathan J. Ledecky
- ------------------------------------ Chairman and Chief Executive July 10, 1998
Jonathan J. Ledecky Officer (Principal Executive
Officer)
/s/ Timothy C. Clayton
- ------------------------------------ Executive Vice President, Chief July 10, 1998
Timothy C. Clayton Financial Officer and Treasurer
(Principal Financial and
Accounting Officer
/s/ David Ledecky
- ------------------------------------ Executive Vice President, Chief July 10, 1998
David Ledecky Administrative Officer and Director
/s/ Vincent W. Eades
- ------------------------------------ Director July 10, 1998
Vincent W. Eades
/s/ W. Russell Ramsey
- ------------------------------------ Director July 10, 1998
W. Russell Ramsey
/s/ M. Jude Reyes
- ------------------------------------ Director July 10, 1998
M. Jude Reyes
/s/ William P. Love, Jr.
- ------------------------------------ Director July 13, 1998
William P. Love, Jr.
/s/ Thomas D. Heule
- ------------------------------------ Director July 9, 1998
Thomas D. Heule
</TABLE>
II-5
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EXHIBIT INDEX
Exhibit Description
- ------- -----------
4.1 Restated Certificate of Incorporation of Consolidation Capital
Corporation (Exhibit 3.01 to the Company's Registration Statement on
Form S-1, as amended (File No. 333-36193) is hereby incorporated by
reference).
4.2 Amended and Restated Bylaws of Consolidation Capital Corporation
(Exhibit 3.02 to the Company's Registration Statement on Form S-1, as
amended (File No. 333-36193) is hereby incorporated by reference).
5 Opinion of Morgan, Lewis & Bockius LLP as to the legality of the
shares being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on signature page).
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EXHIBIT 5
July 14, 1998
Consolidation Capital Corporation
800 Connecticut Avenue, N.W.
Suite 1111
Washington DC 20006
Re: Registration Statement on Form S-8:
Consolidation Capital Corporation Stock Options
Gentlemen:
We have acted as special counsel to Consolidation Capital Corporation, a
Delaware corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8, including the exhibits thereto (the
"Registration Statement"), to be filed under the Securities Act of 1933, as
amended (the "Act"), for the registration of 1,000,000 shares (the "Shares") of
Common Stock, par value $.001 per share, to be offered and sold pursuant to
stock option agreements to be executed by the Company in connection with the
Company's acquisition of other businesses, assets or securities (the "Option
Agreements").
In connection with this opinion, we have examined the Registration Statement,
the Restated Certificate of Incorporation, the Amended and Restated By-laws of
the Company, certain of the Company's corporate proceedings as reflected in its
minute books and such other records as we have deemed relevant. In our
examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
with the originals of all documents submitted to us as copies. In addition, we
have made such other examinations of law and fact as we have deemed appropriate
in order to form a basis for the opinion hereinafter expressed.
For purposes of this opinion, we have assumed that the execution of the
Option Agreements shall have been duly authorized by all necessary corporate
action as of the date of the execution of such Option Agreements, and that such
Option Agreements shall have been duly executed prior to the exercise of the
options that are the subject of such Option Agreements. In addition, we have
assumed that the Shares will be issued in accordance with the terms of the
Option Agreements, and the certificates evidencing the same will be duly
delivered against receipt of the consideration stipulated therefor which will be
in an amount specified in the governing Option Agreement or otherwise in an
amount no less than the par value of the Shares.
Based upon the foregoing, we are of the opinion that the Shares, when issued and
paid for in accordance with the foregoing assumptions, will be validly issued,
fully paid and non-assessable.
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Consolidation Capital Corporation
July 14, 1998
Page 2
The opinion set forth above is limited to the Delaware General Corporation Law,
as amended.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this opinion and consent, we do not admit that we are
acting within the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
Morgan, Lewis & Bockius LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 27, 1998 which appears in
Consolidation Capital Corporation's Annual Report on Form 10-K for the year
ended December 31, 1997.
PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
July 14, 1998