As filed with the Securities and Exchange Commission on April 17, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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CLASSIC COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 74-2630019
(State of incorporation) (I.R.S. employer identification number)
515 CONGRESS AVENUE, SUITE 2626
AUSTIN, TX 78701
(Address of principal executive offices, including zip code)
CLASSIC COMMUNICATIONS, INC. 1999 OMNIBUS STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENTS,
DATED AS OF AUGUST 25, 1999 AND DECEMBER 7, 1999
(Full title of the plans)
J. MERRITT BELISLE
CHIEF EXECUTIVE OFFICER
515 CONGRESS AVENUE, SUITE 2626
AUSTIN, TX 78701
(512) 476-9095
(Name, address and telephone number, including area code,
of agent for service)
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WITH COPIES TO:
PETER C. KRUPP, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM (ILLINOIS)
333 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60606
(312) 407-0700
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered per Share Price Fee
==================================== ============ ================ ================== =============
<S> <C> <C> <C> <C>
Class A Voting Common Stock, 2,000,000(1) $14.84(5) $29,680,000 $7,836
par value $0.01 per share
Class A Voting Common Stock, 589,500(2) $20(6) $11,790,000 $3,113
par value $0.01 per share
Class A Voting Common Stock, 8,000(3) $25(6) $200,000 $53
par value $.01 per share
Total: 2,597,500(4) ---- $41,670,000 $11,002
==================================== ============ ================ ================== =============
(1) Represents the number of shares of Class A Voting Common Stock, par
value $0.01 per share (the "Common Stock"), of Classic Communications,
Inc. (the "Company") available for issuance under the 1999 Omnibus
Stock Incentive Plan (the "Plan").
(2) Represents the number of shares of Common Stock underlying various
non-qualified options granted to various employees and a director of
the Company pursuant to award agreements dated as of August 25, 1999.
(3) Represents the number of shares of Common Stock underlying the
non-qualified option granted to a director of the Company pursuant to
an award agreement dated as of December 7, 1999.
(4) The aggregate number of shares of Common Stock shown in the table above
consists of the total number of shares underlying the options granted
pursuant to the award agreements referenced in (2) and (3) above and
the maximum number of shares of Common Stock which may be granted or
sold upon the exercise of options or pursuant to purchase rights which
hereafter may be granted under the Plan, as of the date hereof. Such
maximum number of shares is subject to adjustment in certain events
pursuant to the terms of the award agreements and the Plan.
Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement covers, in
addition to the number of shares of Common Stock shown in the table
above, an indeterminate number of shares of Common Stock which may be
subject to grant or otherwise issuable after the operation of the
provisions of the award agreements and the Plan governing such
adjustments.
(5) Estimated in accordance with Rule 457(c) and (h) under the Securities
Act solely for the purpose of calculating the registration fee. The
maximum offering price per share is based on the average of the high
and low sale prices for a share of Common Stock on the Nasdaq National
Market on April 11, 2000.
(6) The maximum offering price per share is computed upon the basis of the
price at which the options may be exercised.
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</TABLE>
The Registration Statement shall become effective upon filing in
accordance with Rule 462(a) under the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Classic Communications, Inc. will send or give the documents
containing the information specified in Part I of Form S-8 to employees or
directors as specified by the Securities and Exchange Commission Rule
428(b)(1) under the Securities Act. Classic Communications is not required
to file these documents with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements under
Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, Classic Communications,
Inc., a Delaware corporation (the "Registrant"), pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by
reference in this registration statement:
(1) The Registrant's Annual Report on Form 10-K filed with the
Commission on March 30, 2000.
(2) The Registrant's Current Reports on Form 8-K, including any
amendments thereto, filed with the Commission on January 12, 2000, February
9, 2000 and February 29, 2000.
(3) The description of the Registrant's outstanding common stock
contained in the Registrant's Registration Statement on Form 8-A/A filed
with the Commission on October 25, 1999, under Section 12 of the Exchange
Act, including any amendment or report filed to update the description.
All documents subsequently filed by the Registrant 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 herein and to be a
part hereof from the date of filing of such documents. Any statement
contained 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 which also is
incorporated or deemed to be 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 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 of the General Corporation Law of the State of Delaware
(the "DGCL") grants each corporation organized thereunder, such as the
Registrant, the power to indemnify its directors and officers against
liabilities for certain of their acts. Section 102(b)(7) of the DGCL
permits a provision in the certificate of incorporation of each corporation
organized thereunder, such as the Registrant, eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for certain breaches of fiduciary duty as a director
except (1) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (3) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (4) for any transaction from which a director derived an
improper personal benefit. Article EIGHTH of the Registrant's Amended and
Restated Certificate of Incorporation has eliminated the personal liability
of directors to the fullest extent permitted by Section 102(b)(7) of the
DGCL.
Article EIGHTH of the Registrant's Amended and Restated Certificate
of Incorporation provides as follows: The Corporation shall indemnify its
directors to the fullest extent authorized or permitted by law, as now or
hereafter in effect, and such right to indemnification shall continue as to
a person who has ceased to be a director of the Corporation and shall inure
to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to
indemnify any director (or his or her heirs, executors or personal or legal
representatives) in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
The right to indemnification conferred by this Article EIGHTH shall include
the right to be paid by the Corporation the expenses incurred in defending
or otherwise participating in any proceeding in advance of its final
disposition. To the same extent as directors, when so determined by the
Board of Directors of the Corporation as set forth in the By-Laws, or when,
as and if authorized from time to time by the Board of Directors of the
Corporation, the Corporation may, but is not required to, provide rights to
indemnification and to the advancement of expenses to officers, employees
and agents of the Corporation similar to those conferred in this Article
EIGHTH to directors of the Corporation. The rights to indemnification and
to the advancement of expenses conferred in this Article EIGHTH shall not
be exclusive of any other right which any person may have or hereafter
acquire under this Certificate of Incorporation, the By-Laws of the
Corporation, any statute, agreement, vote of the stockholders of the
Corporation or disinterested directors of the Corporation or otherwise. Any
repeal or modification of this Article EIGHTH shall not adversely affect
any rights to indemnification and to the advancement of expenses of a
director of the Corporation existing at the time of such repeal or
modification with respect to any acts or omissions occurring prior to such
repeal or modification.
Each of the directors of the Registrant are parties to
indemnification agreements whereby the Registrant agrees to indemnify each
director to the fullest extent authorized or permitted by law for claims
relating to the fact that the individual is or was a director of the
Registrant. The agreements also provide that if the Registrant maintains an
insurance policy providing directors liability insurance, the directors
shall be covered to the maximum extent of the coverage available.
The foregoing statements are subject to the detailed
provisions of Section 102(b)(7) of the DGCL, Article EIGHTH of the
Registrant's Amended and Restated Certificate of Incorporation, Article
EIGHTH of the Registrant's Amended and Restated By-Laws and the
indemnification agreements described above, each as applicable.
The foregoing discussion is qualified in its entirety by
reference to the DGCL, the Registrant's Amended and Restated Certificate of
Incorporation, the Registrant's By-Laws and the indemnification agreements
described above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
A list of exhibits is set forth on the Exhibit Index which
immediately precedes the exhibits and which is incorporated by reference
herein.
ITEM 9. UNDERTAKINGS.
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:
(1) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(2) 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 the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, an 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
(3) 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) and (a)(2) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the 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.
(d) 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 of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act of 1934) 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.
(e) 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 Securities 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 Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that is 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 Austin, State of Texas, on this
17th day of April, 2000.
CLASSIC COMMUNICATIONS, INC.
By: /s/ Steven E. Seach
Steven E. Seach
President and Chief Financial Officer
POWER OF ATTORNEY
We the undersigned directors and officers of Classic
Communications, Inc., do hereby constitute and appoint Steven E. Seach and
J. Merritt Belisle our true and lawful attorneys-in-fact and agents, to do
any and all acts and things in our names and on our behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our name in the capacities indicated below, which said
attorneys and agents may deem necessary or advisable to enable said
Corporation to comply with the Securities Act of 1933 and any rules,
regulations and requirements of the Securities and Exchange Commission, in
connection with this registration statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto; and we do hereby ratify and confirm all
that said attorneys and agents shall do or cause to be done by virtue
thereof.
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.
NAME TITLE DATE
/s/ Alberto Cribiore Director and Chairman of the April 17, 2000
Alberto Cribiore Board
/s/ J. Merritt Belisle Chief Executive Officer and April 17, 2000
J. Merritt Belisle Director (Principal Executive
Officer)
/s/ Steven E. Seach President and Chief Financial April 17, 2000
Steven E. Seach Officer and a Director (Principal
Financial Officer and Principal
Accounting Officer)
/s/ Lisa A. Hook Director April 17, 2000
Lisa A. Hook
/s/ Martin Payson Director April 17, 2000
Martin Payson
/s/ Jeffery Garvey Director April 17, 2000
Jeffery Garvey
/s/ James Kofalt Director April 17, 2000
James Kofalt
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4.1 Form of certificate evidencing shares of Class A
voting common stock (incorporated by reference to
Exhibit 4.1 of the Registrant's Registration
Statement on Form S-1/A (Registration No. 333-89295)
filed on November 15, 1999).
3.1 Amended and Restated Certificate of Incorporation of
Classic Communications, Inc., dated as of December 9,
1999 (incorporated by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form 10-K
filed on March 30, 2000).
3.2 Amended and Restated Bylaws of Classic
Communications, Inc.(incorporated by reference to
Exhibit 3.2 of the Registrant's Registration
Statement on Form 10-K filed on March 30, 2000).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom
(Illinois).
10.1 Classic Communications, Inc. 1999 Omnibus Stock
Incentive Plan (incorporated by reference to Exhibit
10.5 of the Registrant's Registration Statement on
Form 10-K filed on March 30, 2000).
10.2 Form of Stock Option Agreement relating to August 25,
1999 and December 7, 1999 grants (incorporated by
reference to Exhibit 10.13 of the Registrant's
Registration Statement on Form 10-K filed on March
30, 2000).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom
(Illinois) (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
Exhibit 5.1
Skadden, Arps, Slate, Meagher & Flom (Illinois)
April 17, 2000
Classic Communications, Inc.
515 Congress Ave., Suite 2626
Austin, Texas 78701
Re: Registration Statement on Form S-8 of Classic Communications, Inc.
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We have acted as special counsel to Classic Communications,
Inc., a Delaware corporation (the "Company"), in connection with the
preparation and filing of a Registration Statement on Form S-8, which is
being filed by the Company with the Securities and Exchange Commission (the
"Commission") on the date hereof (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), relating to the
registration of 2,597,500 shares (the "Shares") of Class A voting common
stock of the Company, par value $0.01 per share (the "Common Stock"). The
Shares include (i) 2,000,000 shares of Common Stock to be issued pursuant
to or reserved for issuance under the Classic Communications, Inc. 1999
Omnibus Stock Incentive Plan (the "1999 Plan") and (ii) 597,500 shares of
Common Stock which are issuable upon the exercise of non-qualified options
to purchase Common Stock which have been granted to various employees and
directors of the Company pursuant to award agreements dated as of August
25, 1999 and December 7, 1999 (together with the 1999 Plan, the "Plans").
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Act.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such copies. As
to any facts material to the opinions which we did not independently
establish or verify, we have relied upon statements and representations of
officers and other representatives of the Company and others. We assume
that the Company will have at the time of issuance of any Shares under the
Plans at least that number of authorized but unissued shares of Common
Stock equal to the number of Shares to be issued pursuant to the Plans.
In rendering the opinions set forth herein, we have examined
and relied on originals or copies of the following:
(a) the Registration Statement;
(b) the Plans;
(c) the Amended and Restated Certificate of
Incorporation and the Amended and Restated
By-Laws of the Company, as presently in
effect;
(d) a specimen certificate representing the
Shares; and
(e) copies of certain resolutions of the Board of
Directors of the Company relating to the
Plans, the Shares and related matters.
We express no opinion as to the laws of any jurisdiction
other the General Corporation Law of the State of Delaware.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, it is our
opinion that, subject to the Company completing all procedures required on
its part to be taken prior to the issuance of the Shares pursuant to the
terms of the Plans, the Shares, when issued and delivered against payment
therefor in accordance with the terms of the Plans, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this
consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules
and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom (Illinois)
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form S-
8 of our reports dated February 23, 2000 relating to the financial
statements of Classic Communications, Inc. which are incorporated by
reference in such Registration Statement.
/s/ PricewaterhouseCoopers, LLP
Austin, Texas
April 14, 2000
