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As filed with the Securities and Exchange Commission on January 2, 1998
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
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CONSOLIDATION CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 52-2054952
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1747 Pennsylvania, Avenue, N.W., Suite 900
Washington, DC 20006
(Address of principal executive offices) (Zip Code)
CONSOLIDATION CAPITAL CORPORATION 1997 LONG-TERM INCENTIVE PLAN
CONSOLIDATION CAPITAL CORPORATION 1997 NON-EMPLOYEE DIRECTORS' STOCK PLAN
CONSOLIDATION CAPITAL CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
JONATHAN J. LEDECKY
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
CONSOLIDATION CAPITAL CORPORATION
1747 PENNSYLVANIA AVENUE, N.W., SUITE 900
WASHINGTON, D.C. 20006
(Name and address of agent for service)
202-955-5490
(Telephone number, including area code, of agent for service)
-----------------------
Copy of all communications to:
F. TRAYNOR BECK, ESQ. JEFFREY N. KLAUDER, ESQ.
EXECUTIVE VICE PRESIDENT, MORGAN, LEWIS & BOCKIUS LLP
GENERAL COUNSEL AND SECRETARY 2000 ONE LOGAN SQUARE
CONSOLIDATION CAPITAL CORPORATION PHILADELPHIA, PA 19103
1747 PENNSYLVANIA AVENUE, N.W., SUITE 900 215-963-5000
WASHINGTON, D.C. 20006
202-955-5490
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
- ------------------------------------------ -------------- ------------------------ ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.001 per share 6,000,000 $20.5625(2) 123,375,000 36,395.63
- ------------------------------------------ -------------- ------------------------ ------------------------ ----------------
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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 1997 Long-Term Incentive
Plan, the 1997 Non-Employee Directors' Stock Plan and the Employee Stock
Purchase Plan.
(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 December 29, 1997.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to 6,000,000 shares of
Common Stock which may be offered and sold under the Consolidation Capital
Corporation 1997 Long-Term Incentive Plan (the "Incentive Plan"), the
Consolidation Capital Corporation 1997 Non-Employee Directors' Stock Plan (the
"Directors' Plan"), and the Consolidation Capital Corporation Employee Stock
Purchase Plan (the "Purchase Plan" and, together with the Incentive Plan and the
Directors' Plan, hereinafter referred to collectively as the "Plans"), of which
4,7000,000 shares are registered for offer and sale under the Incentive Plan,
300,000 shares are registered for offer and sale under the Directors' Plan and
1,000,000 shares are registered for offer and sale under the Purchase Plan.
Pursuant to Rule 416(a), the number of shares of Common Stock 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 the anti-dilution provisions of each of the Plans.
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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 (the
"Securities Act"), and the introductory Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934 (the "Exchange Act") are incorporated by reference in this Registration
Statement:
1. The Company's definitive prospectus, dated November 25, 1997,
filed with the Commission pursuant to Rule 424(b) under the
Securities Act on November 26, 1997.
2. 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 a 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.
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Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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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.
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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
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
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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 Price Waterhouse LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (contained in Exhibit 5)
24 Power of Attorney (included on signature page)
ITEM 9. UNDERTAKINGS.
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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,
II-3
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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.
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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 December 30, 1997.
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 Officer December 30, 1997
- ----------------------- (Principal Executive Officer)
Jonathan J. Ledecky
/s/ Timothy C. Clayton Executive Vice President, Chief Financial December 30, 1997
- ----------------------- Officer and Treasurer (Principal Financial
Timothy C. Clayton and Accounting Officer
/s/ David Ledecky Executive Vice President, Chief December 30, 1997
- ----------------------- Administrative Officer and Director
David Ledecky
/s/ Vincent W. Eades
- ----------------------- Director December 30, 1997
Vincent W. Eades
/s/ W. Russell Ramsey
- --------------------- Director December 30, 1997
W. Russell Ramsey
/s/ M. Jude Reyes
- --------------------- Director December 30, 1997
M. Jude Reyes
</TABLE>
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EXHIBIT 5
December 31, 1997
Consolidation Capital Corporation
1747 Pennsylvania Avenue, N.W.
Suite 900
Washington, D.C. 20007
Re: Registration Statement on Form S-8:Consolidation Capital Corporation 1997
Long-Term Incentive Plan Consolidation Capital Corporation 1997 Non-
Employee Directors' Stock Plan Consolidation Capital Corporation Employee
Stock Purchase Plan
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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 6,000,000 shares (the "Shares") of
Common Stock, par value $.001 per share, to be offered and sold pursuant to the
Consolidation Capital Corporation 1997 Long-Term Incentive Plan, the
Consolidation Capital Corporation 1997 Non-Employee Directors' Stock Plan and
the Consolidation Capital Corporation Employee Stock Purchase Plan
(collectively, the "Plans").
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.
With respect to the issuance of any Shares, we have assumed that the Shares will
be issued, and the certificates evidencing the same will be duly delivered, in
accordance with the terms of the Plans and against receipt of the consideration
stipulated therefor which will be no less than the par value of the Shares.
<PAGE>
Consolidation Capital Corporation
December 31, 1997
Page 2
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.
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
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Consolidation Capital Corporation of our report dated
November 17, 1997 except as to the first paragraph of Note 2, which is as of
November 25, 1997, which appears in the definitive Prospectus dated November
26, 1997, filed pursuant to Rule 424b under the Securities Act of 1933.
PRICE WATERHOUSE LLP
Minneapolis, Minnesota
December 30, 1997
