<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 15, 1999
REGISTRATION NO. 333-78483
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------
CONVERGENT COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
COLORADO 4813 84-1337265
(PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
(STATE OR OTHER CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
JURISDICTION OF
INCORPORATION OR
ORGANIZATION)
----------------
400 INVERNESS DRIVE SOUTH, SUITE 400
ENGLEWOOD, COLORADO 80112
(303) 749-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
MARTIN E. FREIDEL, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
CONVERGENT COMMUNICATIONS, INC.
400 INVERNESS DRIVE SOUTH, SUITE 400
ENGLEWOOD, COLORADO 80112
303-749-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
WITH COPIES TO:
RICHARD M. RUSSO, ESQ. JAMES S. SCOTT, SR., ESQ.
GIBSON, DUNN & CRUTCHER LLP SHEARMAN & STERLING
1801 CALIFORNIA STREET, SUITE 4100 599 LEXINGTON AVE.
DENVER, COLORADO 80202 NEW YORK, NEW YORK 10022
303-298-5700 212-848-4000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED (1) PER SHARE (2) PRICE REGISTRATION FEE (3)
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common 9,660,000
Stock.. shares $13.00 $125,580,000 $34,911
- --------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
(1) Includes 1,260,000 shares that may be purchased by the underwriters to
cover over-allotments, if any.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(a).
(3) Includes $31,970 paid by the Registrant on May 14, 1999.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The registrant's expenses in connection with the Offering described in this
registration statement are set forth below. All amounts except the Securities
and Exchange Commission registration fee, the NASD filing fee and the listing
fee are estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $34,911
NASD filing fee................................................... 13,000
NASD Listing fee.................................................. 120,000
Printing and engraving expenses................................... 250,000
Accounting fees and expenses...................................... 150,000
Legal fees and expenses........................................... 400,000
Fees and expenses (including legal fees) for qualification under
state
securities laws.................................................. 4,000
Transfer agent's fees and expenses................................ --
Miscellaneous..................................................... 165,000
---------
Total........................................................... 1,136,911
=========
</TABLE>
Item 14. Indemnification of Directors and Officers
Reference is made to C.R.S. (S) 7-108-102 (1994), which provides for
indemnification of directors, officers and other employees in certain
circumstances, and to C.R.S. (S) 7-108-402 (1994), which provides for the
elimination or limitation of the personal liability for monetary damages of
directors under certain circumstances. The Amended and Restated Articles of
Incorporation of the Company eliminates the personal liability for monetary
damages of directors under certain circumstances and provides indemnification
to directors and officers of the Company to the fullest extent permitted by the
Colorado Business Corporation Act. Among other things, these provisions provide
indemnification for officers and directors against liabilities for judgments in
and settlements of lawsuits and other proceedings and for the advance and
payment of fees and expenses reasonably incurred by the director or officer in
defense of any such lawsuit or proceeding.
Item 15. Recent Sales of Unregistered Securities
The following tables summarize securities issued or sold by us within the
past three years that were not sold pursuant to registered offerings:
<TABLE>
<CAPTION>
Number of
Underwriters Shares of Common Stock
or Class of Common Warrants/ Other Exemption
Date Purchasers Stock Options Securities Consideration Claimed*
---- ------------ --------- ---------------- ---------- ---------------- -------------
<S> <C> <C> <C> <C> <C> <C>
From Apr Founders 3,750,000 $450,000 Section 4(2)
18, 1996 to
Oct 4, 1996
- ------------------------------------------------------------------------------------------------------
Oct 31, 1996 Sellers in 187,500 10% equity Section 4(2)
an interest in
acquisition target company
- ------------------------------------------------------------------------------------------------------
From Dec 13, 1996 Accredited 3,500,000 1,750,000 $7,000,000 (of Regulation D
to Feb 18, investors which $224,700
1997 is attributed to
warrants)
- ------------------------------------------------------------------------------------------------------
Feb 18, 1997 Placement 370,625 (28,125 Services in Regulation D
Agents exercised) connection with
offering.
- ------------------------------------------------------------------------------------------------------
Dec 17, 1996 Sellers in 1,750,000 100% equity Section 4(2)
an interest in
acquisition target company
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Number of Common
Underwriters Shares of Stock
or Class of Common Warrants/ Other Exemption
Date Purchasers Stock Options Securities Consideration Claimed*
---- -------------- --------- --------- ------------ ---------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Apr 10, 1997 Sellers in an 25,000 100% equity Section 4(2)
acquisition interest in
target company
- ----------------------------------------------------------------------------------------------
May 15, 1997 Credit 40,285 Extension of Section 4(2)
facility credit
provider
- ----------------------------------------------------------------------------------------------
Jun 30, 1997 Employee 375,000 $45,000 Rule 701
options
exercised
- ----------------------------------------------------------------------------------------------
Sep 10, 1997 Sellers in an 37,500 100% equity Section 4(2)
acquisition interest in
target company
- ----------------------------------------------------------------------------------------------
Sep 23, 1997 Sellers in an 375,000 100% equity Section 4(2)
acquisition interest in
target company
- ----------------------------------------------------------------------------------------------
From Oct 1, Accredited 3,410,000 1,705,000 $17,050,000 (of Regulation D
1997 and Nov investors which $3,351,689
5, 1997 is attributed to
warrants)
- ----------------------------------------------------------------------------------------------
Nov 14, 1997 Placement 307,930 Services in Regulation D
Agents connection with
private
placement.
- ----------------------------------------------------------------------------------------------
Nov 19, 1997 Credit 166,666 Consideration Section 4(2)
facility for extension of
provider $10.0 million in
credit.
- ----------------------------------------------------------------------------------------------
Dec 3, 1997 Sellers in an 25,000 Substantially Section 4(2)
acquisition all of the
assets of the
target company
- ----------------------------------------------------------------------------------------------
Jan 15, 1998 Investment 6,000 Investment Section 4(2)
Bank banking services
performed
- ----------------------------------------------------------------------------------------------
Jan 15, 1998 Investment 4,166 Investment Section 4(2)
Bank banking services
performed
- ----------------------------------------------------------------------------------------------
Feb 19, 1998 Employee 5,000 $10,000 Rule 701
options
- ----------------------------------------------------------------------------------------------
Feb 20, 1998 Sellers in an 5,000 Substantially Section 4(2)
acquisition all of the
assets of the
target company
- ----------------------------------------------------------------------------------------------
Mar 10, 1998 Consultants 37,500 $4,500 plus Rule 701
services
- ----------------------------------------------------------------------------------------------
Apr 2, 1998 Accredited 864,000 $160,000,000 $160,000,000 Rule 144(A)
investors-- 13% Senior and
Merrill Lynch Notes due Regulation S
& Co.; Bear, 2008
Stearns & Co;
and BT Alex.
Brown
(underwriters)
- ----------------------------------------------------------------------------------------------
Apr 9, 1998 Private 28,125 $67,500 Section 4(2)
placement
agent warrant
exercise
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Number of
Underwriters or Shares of
Class of Common Common Stock Other Exemption
Date Purchasers Stock Warrants/ Options Securities Consideration Claimed*
---- ----------------- --------- ----------------- --------------- ---------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Apr 9, 1998 Private placement 6,850 $41,100 Section 4(2)
agent warrant
exercise
- ------------------------------------------------------------------------------------------------------------
Apr 28, 1998 Sellers in an 50,000 Substantially Section 4(2)
acquisition all of the
assets of the
target company
- ------------------------------------------------------------------------------------------------------------
May 22, 1998 Sellers in an 15,000 Substantially Section 4(2)
acquisition all of the
assets of the
target company
- ------------------------------------------------------------------------------------------------------------
Jul 16, 1998 Sellers in an 170,000 Substantially Section 4(2)
acquisition all of the
assets of the
target company
- ------------------------------------------------------------------------------------------------------------
Aug 1, 1998 Strategic 131,250 Services Section 4(2)
marketing (subject to Performed
services provider reduction based
on performance)
(32,812 canceled)
- ------------------------------------------------------------------------------------------------------------
Aug 3, 1998 Consultant 105,000 (30,000 Services Section 4(2)
canceled) Performed
- ------------------------------------------------------------------------------------------------------------
Sep 11, 1998 Employee options 1,000 $2,000 Section 4(2)
- ------------------------------------------------------------------------------------------------------------
Feb 12, 1999 Sellers in an 24,925 Substantially Section 4(2)
and May 26, acquisition all of the
1999 assets of the
target company
- ------------------------------------------------------------------------------------------------------------
Mar. 17, 1999 Accredited 750,000 800,000 $20,000,000 Section 4(2)
and Mar. 31, investors and one shares of Class
1999 investor who A Convertible
retained Company Preferred Stock
director Michael
Marocco as
Investor
Representative.
- ------------------------------------------------------------------------------------------------------------
Mar. 21, 1999 Credit facility 200,000 Extension of Section 4(2)
provider $20.0 million of
credit
- ------------------------------------------------------------------------------------------------------------
Mar. 31, 1999 Employee Options 20,000 $44,000 Rule 701
- ------------------------------------------------------------------------------------------------------------
Apr. 19, 1999 Sellers in an 37,000 $370,000 Section 4(2)
acquisition
- ------------------------------------------------------------------------------------------------------------
Apr. 19, 1999 Employee Options 1,000 $2,000 Rule 701
- ------------------------------------------------------------------------------------------------------------
Apr. 23, 1999 1997 Warrant 1,250 $9,375 Section 4(2)
exercise
- ------------------------------------------------------------------------------------------------------------
May 3, 1999 Employee 10,500 $33,000 Rule 701
Options
- ------------------------------------------------------------------------------------------------------------
May 18, 1999 Employee Options 5,000 $50,000 Rule 701
- ------------------------------------------------------------------------------------------------------------
May 21, 1999 Private placement 1,360,162 $10,037,025 Section 4(2)
to July 13, warrant exercises
1999
- ------------------------------------------------------------------------------------------------------------
June 4, 1999 Employee shares 750 Signing bonus Rule 701
- ------------------------------------------------------------------------------------------------------------
July 2, 1999 Employee Options 3,750 $16,500 Rule 701
</TABLE>
* We believe that exemptions in addition to those specified above may exist
with respect to the listed transactions
II-3
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
-------- -----------
<C> <S>
1.1++++ Form of Underwriting Agreement
3.1++ Amended and Restated Articles of Incorporation of Convergent
Communications, Inc.
3.2++ Bylaws of Convergent Communications, Inc.
3.3+ Articles of Amendment to the Amended and Restated Articles of
Incorporation of Convergent Communications, Inc.
3.4++ Articles of Amendment to the Amended and Restated Articles of
Incorporation of Convergent Communications, Inc.
3.5 Form of Third Articles of Amendment to Amended and Restated Articles
of Incorporation of Convergent Communications, Inc.
4.1++ Indenture, dated as of April 2, 1998, by and among Convergent
Communications, Inc. and Norwest Bank Colorado, N.A.
4.2++ Warrant Agreement, dated as of April 2, 1998
4.3++ Warrant Registration Rights Agreement, dated as of April 2, 1998
4.4++ Collateral Account Control Agreement, dated as of April 2, 1998
4.5++ Custody and Security Agreement, dated as of April 2, 1998
4.6+ Investor Rights Agreement, dated as of March 17, 1999
4.7+ Warrant Agreement, dated as of March 17, 1999
4.8++++ Warrant Agreement, dated as of June 3, 1999
5.1 Opinion of Gibson, Dunn & Crutcher LLP
10.1++ Master Lease Agreement, dated November 11, 1997, between Comdisco,
Inc. and Convergent Communications, Inc.
10.2++ Master Lease Agreement, dated November 17, 1997, between Convergent
Capital Corporation and Convergent Communications, Inc.
10.3++ Program Agreement, dated November 19, 1997, among Comdisco, Inc.,
Convergent Communications Services, Inc. and Convergent
Communications, Inc.
10.4++ Stock Purchase Agreement, dated October 31, 1996, between SONeTech
and Convergent Communications, Inc.
10.5++ Stock Purchase Agreement dated March 1, 1997, among Integrated
Communication Networks, Inc., Communications Services of Iowa, Inc.,
John Shlepphorst and Convergent Communications, Inc.
10.6++ Agreement and Plan of Merger, dated August 29, 1997, among Convergent
Communications Services, Inc., A.T.T.Ex Corporation and Convergent
Communications, Inc.
10.7++ Agreement and Plan of Merger, dated September 1, 1997, among
Convergent Communications Services, Inc., Vital Integration Solutions
and Convergent Communications, Inc.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
10.8++ Asset Purchase Agreement, dated October 1, 1997, between Big Planet,
Inc. and Convergent Communications Services, Inc.
10.9++ Asset Purchase Agreement, dated December 3, 1997, between Sigmacom
Corporation and Convergent Communications Services, Inc.
10.10++ Asset Purchase Agreement, dated February 1, 1998, between Peak Comm,
Inc. d/b/a Telephone Communications Company and Convergent
Communications Services, Inc.
10.11++ Agreement and Plan of Merger, dated March 13, 1998, among Convergent
Communications Services, Inc., Communication Services of Colorado,
Inc., Donna Sipes and Convergent Communications, Inc.
10.12++ Asset Purchase Agreement, dated March 27, 1998, between Network
Computing Solutions, LLC and Convergent Communications Services, Inc.
10.13++ Employment Agreement, dated December 15, 1996, between Keith V. Burge
and Convergent Communications, Inc., as amended April 13, 1998
10.14++ Employment Agreement, dated December 15, 1996, between John R. Evans
and Convergent Communications, Inc., as amended April 13, 1998
10.15++ Employment Agreement, dated December 15, 1996, between Philip G. Allen
and Convergent Communications, Inc., as amended April 13, 1998
10.16++ Employment Agreement, dated August 7, 1997, between Martin E. Freidel
and Convergent Communications, Inc.
10.17++ Asset Purchase Agreement, dated May 15, 1990, among Convergent
Communications Services, Inc., H, H & H Communications Technologies,
Inc.
10.18++ Telephone Company Acquisition Agreement between Convergent
Communications, Inc., First Continental Group, L.C., and ICN, LLC
dated July 1996
10.19++ Asset Purchase Agreement, dated June 16, 1998 (as amended) by and
between Convergent Communications Services, Inc. and Tie
Communications, Inc., Debtor-in-Possession
10.20++ Asset Purchase Agreement, dated June 30, 1998 by and between
Convergent Communications, Inc. and CMB Holdings, Inc.
10.21+ Asset Purchase Agreement, dated February 1, 1999, by and between
Convergent Communications, Services, Inc. and Kansas Communications,
Inc.
10.22++ Employment Agreement, dated March 3, 1997, between John J. Phibbs and
Convergent Communications, Inc., as amended on April 13, 1998
10.23+ Securities Purchase Agreement, dated as of March 17, 1999, by and
between Convergent Communications, Inc., and the purchasers signatory
thereto
10.24+ First Amendment to Employment Agreement by and between Convergent
Communications, Inc. and Martin E. Freidel, dated September 15, 1998
10.25+ Second Amendment to Employment Agreement by and between Convergent
Communications, Inc. and John J. Phibbs, dated February 1, 1999
10.26++ Second Amendment to Employment Agreement by and between Convergent
Communications, Inc. and Philip G. Allen, dated April 8, 1999
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
--------- -----------
<C> <S>
10.27++ Second Amendment to Employment Agreement by and between Convergent
Communications, Inc. and Martin E. Freidel, dated April 8, 1999
10.28++ Second Amendment to Employment Agreement by and between Convergent
Communications, Inc. and John R. Evans, dated April 8, 1999
10.29++ Third Amendment to Employment Agreement by and between Convergent
Communications, Inc. and John J. Phibbs, dated April 8, 1999
10.30++ Second Amendment to Employment Agreement by and between Convergent
Communications, Inc. and Keith V. Berge, dated April 8, 1999
10.31++++ Credit and Guaranty Agreement among Convergent Communications, Inc.,
Convergent Communications Services, Inc., Convergent Capital
Corporation, various lenders, and Goldman Sachs Credit Partners
L.P., dated as of June 3, 1999
10.32++++ Pledge and Security Agreement among Convergent Communications, Inc.,
Convergent Communications Services, Inc., Convergent Capital
Corporation and Goldman Sachs Credit Partners L.P., dated as of June
3, 1999
21.1++++ Consent of PricewaterhouseCoopers LLP on Convergent Communications,
Inc.
21.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5)
21.3++ Consent of PricewaterhouseCoopers LLP on TIE Communications, Inc.
24.1++ Power of Attorney, included on signature page
27.1++ Financial Data Schedule
</TABLE>
- --------
++ Previously filed and incorporated by reference to the Registration Statement
on Form S-4 (Reg. No. 333-5393).
+ Previously filed and incorporated by reference to the Form 10-K (SEC File
No. 333-53953)
++Previously filed and incorporated by reference to the Registration Statement
on Form S-1 (Reg. No. 333-78483) filed May 14, 1999.
++++Previously filed and incorporated by reference to Amendment No. 1 to
Registration Statement on Form S-1 (Reg. No. 333-78483) filed on June 28,
1999.
Item 17.
(a) 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 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 begin 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.
(b) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule
II-6
<PAGE>
430A and contained in a form of prospectus filed by the registrant pursuant to
Rule 242(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared effective.
(c) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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.
II-7
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT NO. 2 TO REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ENGLEWOOD,
STATE OF COLORADO, ON JULY 15, 1999.
Convergent Communications, Inc.
/s/ John R. Evans
By: _________________________________
John R. Evans
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED ON JULY 15, 1999 BY THE FOLLOWING PERSONS IN THE
RESPECTIVE CAPACITIES INDICATED OPPOSITE THEIR NAMES.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
*/s/ John R. Evans Chairman, Chief Executive July 15, 1999
______________________________________ Officer and Director
John R. Evans (Principal Executive
Officer)
*/s/ John J. Phibbs Chief Financial Officer July 15, 1999
______________________________________ and Treasurer (Principal
John J. Phibbs Financial and Principal
Accounting Officer)
*/s/ Keith V. Burge President, Chief Operating July 15, 1999
______________________________________ Officer and Director
Keith V. Burge
*/s/ Philip G. Allen Executive Vice President, July 15, 1999
______________________________________ Secretary and Director
Philip G. Allen
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
*/s/ Roland E. Casati Director July 15, 1999
______________________________________
Roland E. Casati
*/s/ Richard G. Tomlinson Director July 15, 1999
______________________________________
Richard G. Tomlinson
*/s/ Spencer I. Brown Director July 15, 1999
______________________________________
Spencer I. Brown
*/s/ Michael J. Marocco Director July 15, 1999
______________________________________
Michael J. Marocco
</TABLE>
- --------
* By Power-of-Attorney
/s/ Martin E. Freidel
- ---------------------------------
Martin E. Freidel
Attorney-in-Fact
II-9
<PAGE>
THIRD ARTICLES OF AMENDMENT
TO
THE AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CONVERGENT COMMUNICATIONS, INC.
Pursuant to the Provisions of
Section 7-110-106 of the Colorado Business Corporation Act
CONVERGENT COMMUNICATIONS, INC., a corporation organized and existing
under the laws of the State of Colorado (the "Corporation"), hereby certifies
that, pursuant to authority contained in its Amended and Restated Articles of
Incorporation, as amended by each of the First and Second Articles of Amendment
(as amended, the "Amended and Restated Articles of Incorporation") and in
accordance with Section 7-110-106 of the Colorado Business Corporation Act, the
holders of the Corporation's common stock, no par value, and the Corporation's
Series A Senior Convertible Preferred Stock duly adopted the following
resolution on May 28, 1999. The number of votes cast for the following
resolution by each voting group entitled to vote separately on the following
resolution was sufficient for approval by that voting group.
RESOLVED, that Article II of the Corporation's Amended and Restated
Articles of Incorporation be amended to include a new Section 3 as follows:
"3. Reverse Stock Split. Upon the date that the Articles of
-------------------
Amendment which include this Section 3 is filed with the Secretary of
State of the State of Colorado ("Effective Date"), each two shares of
issued and outstanding shares of common stock of this Corporation shall
be automatically combined into one share of common stock of this
Corporation ("Reverse Stock Split"). In lieu of the issuance of any
fractional shares that would otherwise result from the Reverse Stock
Split, the Corporation shall pay the cash value of fractions of a share
determined by the fair market value of the common stock on the Effective
Date as determined by the Board of Directors of the Corporation
multiplied by the fractional interest. Following the effectiveness of
the Articles of Amendment which include this Section 3, certificates
representing the shares of common stock to be outstanding thereafter
shall be exchanged for certificates now outstanding pursuant to
procedures adopted by the Corporation's Board of Directors and
communicated to those who are to receive new certificates."
<PAGE>
Dated: July 20, 1999
CONVERGENT COMMUNICATIONS, INC.
By: __________________________________
Name: Martin E. Freidel
Title: Assistant Secretary
2
<PAGE>
EXHIBIT 5.1
July 15, 1999
(303) 298-5700 C 18787-00006
Convergent Communications, Inc.
400 Inverness Drive South, Suite 400
Englewood, Colorado 80112
Re: Convergent Communications, Inc. Registration Statement on Form S-1
(File No. 333-78483)
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-1, File No. 333-78483
(the "Registration Statement"), of Convergent Communications, Inc., a Colorado
corporation (the "Company"), filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), in connection with the registration of up to 9,660,000 shares
of the Company's common stock, no par value (the "Shares"). The Shares are
being sold by the Company and the selling shareholders identified as such in the
Registration Statement.
For the purpose of the opinion set forth below, we have examined and are
familiar with the proceedings taken and proposed to be taken by the Company in
connection with the sale of the Shares, including, among other things, such
corporate records of the Company and certificates of officers of the Company and
of public officials and such other documents as we have deemed 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.
<PAGE>
Convergent Communications, Inc.
July 15, 1999
Page 2
Based upon the foregoing examination and in reliance thereon, and in
reliance on statements of fact contained in the documents that we have examined,
and subject to the completion of the proceedings to be taken by the Company
prior to the sale of the Shares, it is our opinion that, when (i) the
Registration Statement has become effective under the Securities Act, (ii) the
Shares have been issued and sold as contemplated in the Registration Statement
and duly delivered, and (iii) the amendment to the Company's Amended and
Restated Articles of Incorporation effecting a reverse stock split of the common
stock of the Company has been accepted for filing by the Colorado Secretary of
State, the Shares will have been legally issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the laws of the United States of America and the
Business Corporation Act of the State of Colorado. In rendering this opinion,
we assume no obligation to revise or supplement this opinion should current
laws, or the interpretations thereof, be changed.
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and we further consent to the use of our name under the caption
"Legal Matters" in the Registration Statement and the Prospectus which forms a
part thereof. In giving these consents, 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.
Very truly yours,
Gibson, Dunn & Crutcher LLP
