As filed with the Securities and Exchange Commission on December 22, 2000
Registration No. 333-
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UNITED STATES
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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DAVEL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
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Delaware 59-3538257
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
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10120 Windhorst Road
Tampa, Florida 33619
(813) 628-8000
(Address of principal Executive Offices)
Davel Communications, Inc.
2000 Long-Term Equity Incentive Plan
(Full title of the Plan)
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Bruce W. Renard, Esq.
Davel Communications, Inc.
10120 Windhorst Road
Tampa, Florida 33619
(813) 628-8000
(Name and address of agent for service)
Copy to:
R. Scott Falk, Esq.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed
Title of Securities Amount to be Offering Price Maximum Amount of
to be registered Registered Per Security Aggregate Registration Fee
Offering Price
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Common Stock, $.01 par value..... 1,000,000 $0.04(1) $40,000(1) $10.56
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(1) Estimated pursuant to Rule 457(c) and (h), solely for the purposes of
calculating the amount of the registration fee, based upon the average of
the bid and asked prices reported for the Common Stock on the Nasdaq OTC
Bulletin Board on December 20, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Part I, Items 1 and
2, will be delivered in accordance with Rule 428(b)(1) of the Securities Act of
1933, as amended ("Securities Act"). Such documents are not required to be, and
are not, filed with the Securities and Exchange Commission ("Commission"),
either as part of this Form S-8 Registration Statement (this "Registration
Statement") or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents, and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in the Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the Davel Communications, Inc. 2000 Long-Term
Equity Incentive Plan (the "Plan") are available without charge by contacting:
Davel Communications, Inc.
10120 Windhorst Road
Tampa, Florida 33619
Attention: Corporate Secretary
(813) 628-8000
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the Plan's sponsor,
Davel Communications, Inc. (the "Company" or the "Registrant") with the
Commission, are incorporated in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K, for the fiscal year
ended December 31, 1999, filed with the Commission on March 27, 2000, as
amended by Amendment No. 1 on Form 10-K/A filed with the Commission on
March 29, 2000, as further amended by Amendment No. 2 on Form 10-K/A filed
with the Commission on April 5, 2000.
(b) The description of the Company's Common Stock, par value $.01
per share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A, as amended, filed with the Commission on December
23, 1998, which incorporated by reference the section titled "Description
of New Davel Capital Stock" contained in the Prospectus as part of the
Company's Registration Statement on Form S-4, filed with the Commission on
November 20, 1998 (Registration No. 333-67617).
(c) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000, filed with the Commission on May 15, 2000.
(d) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 2000, filed with the Commission on August 14, 2000.
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(e) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 2000, filed with the Commission on November
14, 2000.
(f) The Company's Current Report on Form 8-K dated March 1, 2000.
(g) All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to
the filing of a post-effective amendment which indicates that all
securities offered hereby 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 the filing of
such reports and 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 or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Company provide that the Company shall indemnify and
hold harmless, to the full extent authorized or permitted by the Delaware
General Corporation Law, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that the
person, or a person for whom he or she is the legal representative, is or was a
director, officer, employee or agent of the Company or is or was serving at the
request of the Company as a director, officer, employee, fiduciary or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise.
Section 145(c) of the Delaware General Corporation law provides for
"mandatory indemnification" to the extent that a present or former director or
officer of a corporation has been successful on the merits or otherwise in the
defense of any proceeding, or in defense of any claim, issue or matter therein,
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with such proceeding. Section 145(e) of the Delaware General
Corporation Law provides that expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall be ultimately determined that he or she is not entitled to be
indemnified by the corporation as authorized in such section.
The Company's Bylaws provide that with respect to proceedings seeking to
enforce rights to indemnification, the Company shall indemnify a person in
connection with a proceeding initiated by such person generally only if such
proceeding was authorized by the Company's Board of Directors.
Pursuant to the Delaware General Corporation Law, the Company may purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person or on such person's
behalf in any such capacity, or arising out of such person's status as such,
whether or not the Company would have the power to indemnify such person against
such liability under the Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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ITEM 8. EXHIBITS. An exhibit index is located at page 8.
Number Description
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4.1 Restated Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 of the Registrant's Form S-4 dated
November 20, 1998 (Registration No. 333-67617)).
4.2 Restated Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form S-4
dated November 20, 1998 (Registration No. 333-67617)).
5.1 Opinion of Bruce W. Renard, Esq.
23.1 Consent of Bruce W. Renard, Esq. (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on signature page).
99.1 Davel Communications, Inc. 2000 Long-Term Equity Incentive Plan.
99.2 Davel Communications, Inc. 1999 Audited Financial Statements.
ITEM 9. UNDERTAKINGS.
(a) 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 the registration statement (or
the most recent post-effective amendment thereof) which,
individually or the aggregate, represents a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change of such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and 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 Section
15(d) of the Securities Exchange Act of 1934 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 securities which remain unsold at the termination of the
offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
registrant's annual report filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's
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annual report pursuant to Section 15(d) of the Securities 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.
(c) 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 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
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Tampa, State of Florida, on this 22nd day of
December, 2000.
DAVEL COMMUNICATIONS, INC.
By: /s/ Bruce W. Renard
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Name: Bruce W. Renard
Title: Senior Vice President of Regulatory and External
Affairs, General Counsel and Corporate Secretary
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
each of Raymond A. Gross, Marc S. Bendeskyor, Bruce W. Renard, or any other
person occupying the office of Chief Executive Officer, Chief Financial Officer
or Senior Vice President of Regulatory and External Affairs, General Counsel and
Corporate Secretary with Davel Communications, Inc. ("Davel") at the time any
action hereby authorized shall be taken, to act as my attorney-in-fact and agent
for all purposes specified in this Power of Attorney. I hereby authorize each
person identified by name or office in the preceding sentence (each of whom is
herein called my "authorized representative") acting alone to sign and file on
my behalf in all capacities I may at any time have with Davel (including but not
limited to the position of director or any officership position) the
registration statement prepared under the Securities Act of 1933 identified in
this Power of Attorney and any pre-effective or post-effective amendment to such
registration statement. I hereby authorize each authorized representative in my
name and on my behalf to execute every document and take every other action
which such authorized representative deems necessary or desirable in connection
with the registration statement identified in this Power of Attorney and any
sale of securities or other transaction accomplished by means of such
registration statement. This Power of Attorney applies to the registration
statement on Form S-8 which registers common stock to be issued pursuant to the
Davel Communications, Inc. 2000 Long-Term Equity Incentive Plan.
This Power of Attorney shall remain in effect with respect to each person
whose signature appears below until and unless such person shall give written
notice to Davel's President and Chief Executive Officer or Davel's General
Counsel or Davel's Chief Financial Officer of such person's election to revoke
this instrument. No such revocation shall be effective to revoke the authority
for any action taken pursuant to this Power of Attorney prior to such delivery
of such revocation.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in their
respective capacities as of this 22nd day of December, 2000.
Signature Title
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/s/ Raymond A. Gross
---------------------------------- Chief Executive Officer and a Director
Raymond A. Gross
/s/ David R. Hill Director
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David R. Hill
/s/ Robert D. Hill Director
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Robert D. Hill
/s/ Donald J. Liebentritt Director
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Donald J. Liebentritt
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Signature Title
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/s/ William C. Pate Director
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William C. Pate
/s/ Theodore C. Rammelkamp, Jr. Director
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Theodore C. Rammelkamp, Jr.
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EXHIBIT INDEX
Number Description
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4.1 Restated Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 of the Registrant's Form S-4 dated
November 20, 1998 (Registration No. 333-67617)).
4.2 Restated Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form S-4
dated November 20, 1998 (Registration No. 333-67617)).
5.1 Opinion of Bruce W. Renard, Esq.
23.1 Consent of Bruce W. Renard, Esq. (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on signature page).
99.1 Davel Communications, Inc. 2000 Long-Term Equity Incentive Plan.
99.2 Davel Communications, Inc. 1999 Audited Financial Statements.
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