As filed with the Securities and Exchange Commission
on November 3, 2000.
Registration No. 333-38114
============================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
Post-Effective Amendment No. 1
to
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
ASCENDANT SOLUTIONS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 75-2900905
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3737 Grader Street, Suite 110 75041
Garland, Texas (Zip Code)
(Address of Principal
Executive Offices)
_________________________
1999 LONG-TERM INCENTIVE PLAN
(Full title of the plan(s))
_________________________
David E. Bowe Copy to:
Chief Executive Officer J. David Washburn, Esq.
ASCENDANT SOLUTIONS, INC. ARTER & HADDEN LLP
3737 Grader Street, Suite 110 1717 Main Street,
Garland, Texas 75041 Suite 4100
(Name and address of Dallas, Texas 75201-4605
agent for service) (214) 761-2100
(214) 348-7200
(Telephone number,
including area code,
of agent for service)
_________________________
<TABLE>
CALCULATION OF REGISTRATION FEE
-------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Amount of
to be Registered Registered Share Offering Price Registration Fee
------------------- ------------- ------------------ --------------- ----------------
<S> <C> <C> <C> <C>
Common Stock
$.0001 par value (1)
</TABLE>
(1) No additional securities are to be registered.
Registration fees were paid upon the filing of the original
Registration Statement on Form S-8 (No. 333-38114) (the
"Original Registration Statement"). Therefore, no further
registration
<PAGE>
fee is required. The Original Registration Statement relates
to an additional 1,300,000 shares of common stock issuable
under the Registrant's 1999 Long-Term Incentive Plan (the
"Plan"). The Registrant registered the initial 1,200,000
shares of common stock issuable under the Plan on Form S-8
(Reg. Statement No. 333-93403).
============================================================
EXPLANATORY NOTE:
This Post-Effective Amendment No. 1 to that certain
Registration Statement on Form S-8 (Registration No. 333-
38114) (the "Registration Statement") is being filed
pursuant to Rule 414 promulgated under the Securities Act of
1933, as amended, (the "Securities Act") by Ascendant
Solutions, Inc., a Delaware corporation (the "Registrant"),
as successor in interest to ASD Systems, Inc. d/b/a
Ascendant Solutions, a Texas corporation ("ASD Systems"),
following a statutory merger (the "Merger") effective
October 20, 2000, for the purpose of changing ASD System's
state of incorporation. Prior to the Merger, the Registrant
had no assets or liabilities other than nominal assets or
liabilities. In connection with the Merger, the Registrant
succeeded by operation of law to all of the assets and
liabilities of ASD Systems.
The Merger was approved by the stockholders of ASD
systems at a special meeting duly called and held on October
19, 2000 for which proxies were solicited pursuant to
Section 14(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
In accordance with paragraph (d) of Rule 414 of the
Securities Act, except as modified by this Post-Effective
Amendment No. 1, the Registrant expressly adopts the
Registration Statement as its own registration statement for
all purposes of the Securities Act and the Exchange Act.
============================================================
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
Section10(a) Prospectus is omitted from the Registration
Statement in accordance with Rule 428 under the Securities
Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information filed by
the Registrant (or by ASD Systems, Inc. prior to the Merger)
with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference:
(a) our Annual Report on Form 10-K, filed with the
Commission for the fiscal year ended December 31, 1999;
(b) our Quarterly Reports on Form 10-Q filed with the
Commission for the quarters ended March 31, 2000 and June
30, 2000;
(c) our Current Reports on Form 8-K dated October 23, 2000;
September 29, 2000; and September 20, 2000;
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<PAGE>
(d) the description of our common stock, par value $.0001
per share (the "Common Stock"), contained in the
Registrant's Registration Statement on Form 8-A (file no. 0-
27945), including any amendment or report filed for the
purpose of updating such description; and
(e) all documents filed with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
subsequent to the date of this Registration Statement shall
be deemed to be incorporated herein by reference and to be a
part hereof from the date of filing of such documents until
such time as there shall have been filed a post-effective
amendment that indicates that all securities offered under
the Registration Statement have been sold or that
deregisters all securities remaining unsold at the time of
the amendment.
Any statement contained herein or 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
the statement contained herein or in any subsequently filed
document that also is or is deemed to be incorporated by
reference herein, or in any document forming any part of the
Section 10(a) Prospectus to be delivered to participants in
connection with, 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.
Article EIGHTH of the Registrant's Certificate of
Incorporation provides that the Registrant shall indemnify
its directors and officers to the fullest extent permitted
by the Delaware General Corporation Law ("DGCL").
Section 145 of the DGCL permits a corporation, under
specified circumstances, to indemnify its directors,
officers, employees or agents against expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by them in
connection with any action, suit or proceeding brought by
third parties by reason of the fact that they were or are
directors, officers, employees or agents of the corporation,
if such directors, officers, employees or agents acted in
good faith and in a manner that they reasonably believed to
be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct
was unlawful. In a derivative action (i.e. one by or in
right of the corporation), indemnification may be made only
for expenses actually and reasonably incurred by directors,
officers, employees or agents in connection with the defense
or settlement of an action or suit, and only with respect to
a matter as to which they shall have acted in good faith and
in a manner they reasonably believed to be in or not opposed
to the best interests of the corporation, except that no
indemnification shall be made if such persons shall have
been adjudged liable to the corporation, unless and only to
the extent that the court in which the action or suit was
brought shall determine upon application that the defendant
directors, officers, employees or agents are fairly and
reasonably entitled to indemnify for such expenses, despite
such adjudication or liability.
Section 102(b)(7) of the DGCL permits a corporation
organized under Delaware law to eliminate or limit the
personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary
duty as a director subject to certain limitations.
Article SEVENTH of the Registrant's Certificate of
Incorporation includes the following provision:
Page 3
<PAGE>
No director of the Corporation shall be personally
liable to the Corporation or any of its stockholders
for monetary damages for breach of fiduciary duty as a
director of the Corporation; PROVIDED, HOWEVER, that
the foregoing is not intended to eliminate or limit the
liability of a director of the Corporation for (i) any
breach of a director's duty of loyalty to the
Corporation or its stockholders, (ii) acts or omissions
not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) a
violation of Section 174 of the Delaware General
Corporation Law, or (iv) any transaction from which the
director derived an improper personal benefit. If the
DGCL is hereafter amended to authorize corporate action
further eliminating or limiting the personal liability
of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the
fullest extent permitted by the DGCL, as so amended.
No amendment to or repeal of this Article SEVENTH shall
apply to or have any effect on the liability or allege
liability of any director of the Corporation for or
with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
The Registrant may purchase and maintain insurance on
behalf of any person who is or was a director, officer,
fiduciary or agent of the Registrant against any liability
asserted against and incurred by such person in any such
capacity or arising out of such person's position, whether
or not the Registrant would have the power to indemnify
against such liability under the provisions of the
Certificate of Incorporation or the Bylaws of the
Registrant.
We have entered into indemnification agreements with
each of our directors that provide for indemnification and
expense advancement to the fullest extent permitted under
the DGCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) Exhibits.
Exhibit Description
------- -------------------------------------
4.1 Certificate of Incorporation of the
Registrant (incorporated by referenced to
Exhibit 3.1 to the Registrant's Current
Report on Form 8-K, filed with the
Commission on October 20, 2000 (the
"October 8-K")).
4.2 Bylaws of the Registrant (incorporated by
reference to Exhibit 3.2 to the October 8-K).
4.3 Agreement and Plan of Merger by and between
the Registrant and ASD Systems
(incorporated by reference to Exhibit 2.1
to the October 8-K).
5.1 Opinion of Arter & Hadden LLP (filed
herewith).
23.1 Consent of Arter & Hadden LLP (included in
their opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP (filed
herewith).
Item 9. Undertakings.
A. 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
Page 4
<PAGE>
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 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 clauses (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those clauses is contained
in periodic reports filed by the Registrant pursuant to
Section 13 or 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 of the securities being
registered which remain unsold at the termination of
the offering.
B. 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 Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's 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.
[Signature Page Follows]
Page 5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has
reasonable grounds to believe that it meets all 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
Garland, Texas, on November 3, 2000.
ASCENDANT SOLUTIONS, INC.
By: /s/ David E. Bowe
---------------------------
David E. Bowe
Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of
1933, as amended, this Registration Statement has been
signed by the following persons and in the capacities
indicated on November 3, 2000.
Signature Title
------------------ -------------------
/s/ David E. Bowe Chief Executive Officer and Chief
------------------ Financial Officer, President
David E. Bowe Principal Executive Officer and
Principal Financial and Accounting
Officer)
/s/Jonathan R. Bloch Director
--------------------
Jonathan R. Bloch
/s/Alan e. Salzman Director
--------------------
Alan E. Salzman
/s/ Paul G. Sherer Director
--------------------
Paul G. Sherer
/s/ Kevin P. Yancy Chairman of the Board
--------------------
Kevin P. Yancy
Page 6
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Description
-------- ----------------------------------------
4.1 Certificate of Incorporation of
the Registrant (incorporated by referenced
to Exhibit 3.1 to the Registrant's Current
Report on Form 8-K, filed with the
Commission on October 20, 2000 (the
"October 8-K"))
4.2 Bylaws of the Registrant
(incorporated by reference to Exhibit 3.2 to
the October 8-K).
4.3 Agreement and Plan of Merger by and
between the Registrant and ASD Systems
incorporated by reference to Exhibit 2.1 to
the October 8-K).
5.1 Opinion of Arter & Hadden LLP
(filed herewith).
23.1 Consent of Arter & Hadden LLP (included in their
opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP
(filed herewith).
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