<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 22, 2000
REGISTRATION NO. 333-46006
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------
ORIUS CORP.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
FLORIDA 1623 65-0894212
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization Classification Code Number) No.)
</TABLE>
1401 FORUM WAY, SUITE 400, WEST PALM BEACH, FLORIDA 33401
(561) 687-8300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------
WILLIAM J. MERCURIO
CHIEF EXECUTIVE OFFICER
ORIUS CORP.
1401 FORUM WAY, SUITE 400, WEST PALM BEACH, FLORIDA 33401
(561) 687-8300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies of all communications, including communications sent to agent for
service, should be sent to:
<TABLE>
<S> <C>
DENNIS M. MYERS MARK C. SMITH
KIRKLAND & ELLIS SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP
200 EAST RANDOLPH DRIVE 4 TIMES SQUARE
CHICAGO, ILLINOIS 60601 NEW YORK, NEW YORK 10036
(312) 861-2000 (212) 735-3000
</TABLE>
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 of
1933, 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, please 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 2
This Amendment No. 1 to Form S-1 is being filed for the purpose of filing
the opinion of Akerman, Senterfitt & Eidson, P.A. as Exhibit 5.1.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a statement of estimated expenses, to be paid solely by
Orius Corp., of the issuance and distribution of the securities being registered
hereby:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $66,000
NASD filing fee............................................. 25,500
Nasdaq National Market listing fee.......................... *
Blue Sky fees and expenses (including attorneys' fees and
expenses)................................................. *
Printing expenses........................................... *
Accounting fees and expenses................................ *
Transfer agent's fees and expenses.......................... *
Legal fees and expenses..................................... *
Miscellaneous expenses...................................... *
-------
Total............................................. $ *
=======
</TABLE>
---------------
* To be provided by Amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
General Corporation Law
We are incorporated under the laws of the State of Florida. Section
607.0850 of the Florida Business Corporation Act provides for indemnification of
a corporation's directors and officers for liabilities and expenses that they
may incur in such capacities. In general, directors and officers are indemnified
with respect to actions taken in good faith in a manner reasonably believed to
be in, or not opposed to, the best interests of the corporation and, with
respect to any criminal action or proceeding, actions that the indemnitee had no
reasonable cause to believe were unlawful.
The indemnification authorized under Florida law is not exclusive and is in
addition to any other rights granted to officers and directors under a
corporation's Articles of Incorporation or Bylaws or any agreement between
officers and directors and a corporation. Our Bylaws provide for the
indemnification of directors, former directors and officers to the maximum
extent permitted by Florida law. Our Bylaws also provide that we may purchase
and maintain insurance on behalf of a director or officer against liability
asserted against the director or officer in such capacity. Prior to the
consummation of this offering, we expect to enter into agreements that provide
for indemnification for our officers and directors in addition to the
indemnification provided for in our restated certificate of incorporation and
bylaws.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the three years preceding the filing of this Registration Statement, the
Registrant sold the following securities that were not registered under the
Securities Act. No underwriting discounts or commissions were paid in connection
with any of these sales.
The Registrant acquired Irwin Utilities of Texas in January 2000, Fenix
Communications, Inc. and Midwest Splicing & Activation, Inc. in April 2000 and
Hattech, Inc. in May 2000. As partial consideration for the purchase of these
companies, the Registrant issued the former owners shares of its common stock,
series C preferred stock and junior subordinated notes in the amounts set forth
below. These issuances
II-1
<PAGE> 3
were exempt from registration under Section 4(2) of the Securities Act as
transactions not involving a public offering.
<TABLE>
<CAPTION>
COMMON SERIES C JUNIOR SUBORDINATED
ACQUISITION STOCK PREFERRED NOTES
----------- ---------- --------- -------------------
<S> <C> <C> <C>
Irwin................................................. 269,052.30 2,128.76 $1,471,244.00
Fenix................................................. 114,347.21 904.72 625,278.70
Midwest Splicing...................................... 16,313.09 932.21 735,622.00
Hattech............................................... 33,685.08 2,086.85 1,669,861.94
</TABLE>
In January 2000, the Registrant sold Mr. Mercurio, the Registrant's
president and chief executive officer, 188,810 shares of its common stock for
$252,633, which was paid for by Mr. Mercurio through the issuance of a
promissory note, in a transaction exempt from registration under Section 4(2) of
the Securities Act as a transaction not involving a public offering.
In December 1999, the Registrant and LISN Holdings, Inc. entered into a
series of transactions that resulted in LISN becoming a wholly owned subsidiary
of the Registrant. In connection with the LISN acquisition, LISN's former
shareholders exchanged an aggregate amount of $62,642,399.34 of LISN's junior
subordinated notes, 90,879.51 shares of LISN's preferred stock and 90,275.69
shares of LISN's common stock for an aggregate of 11,455,629.8 shares of the
Registrant's class B common stock, 90,637.70 shares of the Registrant's series C
preferred stock and $62,642,399.34 in aggregate principal amount of the
Registrant's junior subordinated notes. These issuances were exempt from
registration under Rule 506 of Regulation D and under Section 4(2) of the
Securities Act. LISN's former shareholders also exchanged options to purchase
2,906 shares of LISN common stock for options to purchase an aggregate of
1,071,029 shares of the Registrant's class B common stock and 7,238 shares of
the Registrant's series C preferred stock. The issuance of these options was
made in reliance on Rule 701 under the Securities Act.
Also in connection with the LISN acquisition, the Registrant's shareholders
exchanged an aggregate of 13,856,473.34 shares of the Registrant's common stock
for an aggregate of 47,957.03 shares of the Registrant's series C preferred
stock, $33,144,527.87 in aggregate principal amount of the Registrant's junior
subordinated notes and $103,401,483.17 in cash. These issuances were exempt from
registration under Section 3(a)(9) of the Securities Act.
On May 24, 1999, as partial consideration for the acquisition of Texel
Corporation, the Registrant issued 1,030,335.03 shares of its common stock to
Texel's former shareholder. This issuance was exempt from registration under
Section 4(2) of the Securities Act as a transaction not involving a public
offering.
On February 26, 1999, an indirect subsidiary of the Registrant was merged
with and into North American Tel-Com Group, Inc. As a result of the merger,
North American Tel-Com became an indirect subsidiary of the Registrant. In the
merger, each issued and outstanding share of North American Tel-Com common stock
was converted into one-tenth of one share of the Registrant's common stock and
each issued and outstanding share of North American Tel-Com preferred stock was
converted into one-tenth of one share of the Registrant's preferred stock. As a
result of the merger, 10,517,561 shares of North American Tel-Com common stock
were converted into 10,897,151 shares of the Registrant's common stock and
100,000 shares of North American Tel-Com series A preferred stock were converted
into 10,000 shares of the Registrant's series A preferred stock. These issuance
were exempt from registration under Section 4(2) of the Securities Act as a
transaction not involving a public offering.
In connection with the merger with North American Tel-Com, the Registrant
issued to HIG Cable West, Inc. 7,596.38 shares of the Registrant's series B
preferred stock for $7,596,380 in cash, or $1,000 per share, and issued
1,029,079 shares of its common stock to 18 of the employees of North American
Tel-Com for an aggregate sum of $2.4 million or $2.34 per share of common stock.
These issuance were exempt from registration under Section 4(2) of the
Securities Act as transactions not involving a public offering. The proceeds of
these offerings were used to complete additional acquisitions in February 1999,
as described below. The Registrant believes that the Section 4(2) exemption was
available based on the financial and other information provided to (or made
available to) the purchasers and the representations
II-2
<PAGE> 4
made by the purchasers in their subscription agreements as to their knowledge
and experience in financial and business matters, their ability to evaluate the
risks and merits of the prospective investment, the suitability of the
investment for them and their ability to bear the risks of the investment. All
purchasers represented that they purchased the shares for investment purposes
only and received share certificates that were legended to restrict
transferability except in compliance with the Securities Act.
Also on February 26, 1999, the Registrant consummated the acquisitions of
Network Cabling Services, Inc., Copenhagen Utilities & Construction, Inc. and
DAS-CO of Idaho, Inc. In connection with the acquisition of all of Network
Cabling's outstanding capital stock, the Registrant issued 300,000 shares of its
common stock to six former shareholders of Network Cabling. In connection with
the acquisition of all of Copenhagen Utilities' outstanding capital stock, the
Registrant issued 1,147,100.85 shares of its common stock to two former
Copenhagen Utilities shareholders as partial consideration for the purchase. In
connection with the acquisition of all of DAS-CO's outstanding capital stock,
the Registrant issued 37,003.27 shares of its common stock to a key employee of
DAS-CO. These issuances exempt were from registration under Section 4(2) of the
Securities Act as transactions not involving a public offering.
In connection with the February 1999 acquisitions, the Registrant entered
into a new credit facility and issued warrants to acquire 371,853.11 shares of
its common stock to five members of the loan syndicate at an exercise price of
$0.01 per share of common stock. The loan syndicate members included PNC Bank,
N.A., Merrill Lynch Capital Corporation, Magnetite Asset Investors LLC, Heller
Financial Inc. and Antares Capital Corp. These issuances were exempt from
registration under Section 4(2) of the Securities Act as transactions not
involving a public offering.
Between February of 1999 and December of 1999, the Registrant issued
options to purchase an aggregate of 652,012.15 shares of its common stock to its
employees, which were cashed-out in connection with the LISN acquisition. On
December 15, 1999, the Registrant issued options to purchase an aggregate of
35,000 shares of its common stock. These grants were exempt from registration
under Rule 701 under the Securities Act.
Between March 2000 and June 2000, the Registrant issued options to purchase
an aggregate of 970,944 shares of its common stock to its employees in reliance
on Rule 701 under the Securities Act.
Between March of 2000 and September 1, 2000, the Registrant issued 185,394
shares of its common stock and 1,253 shares of its series C preferred stock to
its employees upon the exercise of outstanding options in reliance on Rule 701
under the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 -- Form of Underwriting Agreement.**
2.1 -- Agreement and Plan of Reorganization, dated November 8,
1999, by and among Orius Corp., Orius Merger Sub., Inc.
and LISN Holdings, Inc.+
2.2 -- Amendment Number One to Agreement and Plan of
Reorganization, dated January 13, 2000, by and among
Orius Corp., Orius Merger Sub, Inc. and LISN Holdings,
Inc.+
3.1 -- Third Restated Articles of Incorporation of Orius Corp.**
3.2 -- Bylaws of Orius Corp.**
4.1 -- Indenture, dated February 9, 2000, by and among NATG
Holdings, LLC and Orius Capital Corp. (the "Issuers"),
the Guarantors named therein (the "Guarantors") and
United States Trust Company of New York, as trustee (the
"Trustee").+
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.2 -- Supplemental Indenture, dated April 14, 2000, by and
among the Issuers, Fenix Communications, Inc., Fenix
Limited Partnership, the other Guarantors and the
Trustee.+
4.3 -- Second Supplemental Indenture, dated July 11, 2000, by
and among the Issuers, Fenix Holdings, Inc., Fenix
Telecom Services Limited Partnership, Network
Comprehensive Telecom, L.P., Network Cabling Holdings,
Inc., Fenix Telecommunications Services, Inc., Irwin
Telecom Services, Inc., Midwest Splicing & Activation,
Inc., Hattech, Inc., the other Guarantors and the
Trustee.+
5.1 -- Opinion of Akerman, Senterfitt & Eidson regarding the
validity of the securities offered hereby.*
10.1 -- Amended and Restated Credit Agreement, dated July 5,
2000, among Orius Corp., NATG Holdings, LLC, Bankers
Trust Company, as Agent, and various lending
institutions, with Deutsche Bank Securities, as Lead
Arranger and Book Manager, Bank of America, N.A., as
Syndication Agent, and First Union National Bank, as
Documentation Agent.+
10.2 -- Orius Corp. Investor Rights Agreement, dated November 8,
1999, by and among Orius Corp., Willis Stein & Partners
II, L.P., Willis Stein & Partners Dutch, L.P., LISN
Holdings, Inc. and each of the other shareholders listed
on the signature pages thereto.+
10.3 -- 1999 Orius Management Equity Compensation Plan.+
10.4 -- 2000 Long-Term Equity Incentive Plan.**
10.5 -- Form of Incentive Stock Option Agreement.**
10.6 -- 2000 Employee Stock Purchase Plan.**
10.7 -- Employment Agreement, dated December 14, 1999, by and
between Orius Corp. and Joseph P. Powers.+
10.8 -- Employment Agreement, dated December 14, 1999, by and
between Orius Corp. and Robert Agres.+
10.9 -- Senior Management Agreement, dated November 8, 1999, by
and between Orius Corp. and William J. Mercurio.+
10.10 -- Employment Agreement, dated May 28, 1999, by and between
Donald J. Vanke and LISN, Inc.+
10.11 -- Employment Agreement, dated June 30, 1998, by and between
William G. Mullen and U.S. Cable, Inc., as amended
pursuant to a Letter Agreement, dated September 24,
1999.+
10.12 -- Consulting Agreement, dated May 30, 2000, between Orius
Corp. and Jack E. Reich.+
10.13 -- Promissory Note, dated January 16, 2000, issued to
William J. Mercurio to Orius Corp.+
21.1 -- Subsidiaries of Orius Corp.**
23.1 -- Consent of PricewaterhouseCoopers LLP.***
23.2 -- Consent of Milhouse, Martz & Neal L.L.P.***
23.3 -- Consent of Williams, Young, LLC.***
23.4 -- Consent of Offutt Childers & Putman, P.C.***
23.5 -- Consent of Akerman, Senterfitt & Eidson, P.A. (included
in Exhibits 5.1).*
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
24.1 -- Power of Attorney.***
</TABLE>
---------------
* Filed herewith.
** To be filed by amendment.
*** Previously filed.
+ This exhibit is incorporated by reference to Orius Corp.'s Registration
Statement on Form S-4, File No. 333-36952, originally filed with the SEC on
May 12, 2000. Orius Corp. agrees to furnish supplementally to the
Commission a copy of any omitted schedule or exhibit to such agreement upon
request by the Commission.
(b) Financial Statement Schedules.
The following financial statement schedules are included in this
Registration Statement:
Schedule II Valuation and Qualifying Accounts
All other schedules for which provision is made in the applicable
accounting regulations of the Commission are not required under the related
instructions, are inapplicable or not material, or the information called for
thereby is otherwise included in the financial statements and therefore has been
omitted.
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Orius Corp. has
duly caused this Amendment No. 1 to Registration Statement on Form S-1 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of West Palm Beach, State of Florida, on September 22, 2000.
Orius Corp.
By: /s/ WILLIAM J. MERCURIO
----------------------------------
William J. Mercurio
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement on Form S-1 has been signed by the following
persons in the capacities on September 22, 2000.
<TABLE>
<CAPTION>
SIGNATURES CAPACITY
---------- --------
<C> <S>
/s/ WILLIAM J. MERCURIO President and Chief Executive Officer,
--------------------------------------------- Director (Principal Executive Officer)
William J. Mercurio
* Chief Financial Officer (Principal Financial
--------------------------------------------- and Accounting Officer)
Robert E. Agres
* Director
---------------------------------------------
Donald J. Vanke
* Director
---------------------------------------------
Gregory M. Barr
* Director
---------------------------------------------
Robert C. Froetscher
* Director
---------------------------------------------
Jack E. Reich
* Director
---------------------------------------------
Avy H. Stein
By: /s/ WILLIAM J. MERCURIO
---------------------------------------------
William J. Mercurio
Attorney in Fact
</TABLE>
* The undersigned by signing his name hereto, does sign and execute this
Amendment No. 1 to Registration Statement on Form S-1 pursuant to the Power
of Attorney executed by the above-named officers and directors of the
Registrant and previously filed with the Commission.
II-6
