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As filed with the Securities and Exchange Commission on June 16, 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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ALLIED RISER COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-2789492
(State of incorporation) (I.R.S. Employer
Identification No.)
1700 PACIFIC AVENUE
DALLAS, TEXAS 75201
(214) 210-3000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
ALLIED RISER COMMUNICATIONS CORPORATION
2000 EMPLOYEE STOCK
PURCHASE PLAN
(Full title of the plan)
MICHAEL R. CARPER, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
ALLIED RISER COMMUNICATIONS
1700 PACIFIC AVENUE, SUITE 400
DALLAS, TEXAS 75201
(214) 210-3000
(Name, address, and
telephone number, including area code,
of agent for service)
WITH COPIES TO:
KATHLEEN R. MCLAURIN, ESQ.
JONES, DAY, REAVIS & POGUE
2727 N. HARWOOD STREET
DALLAS, TEXAS 75201
(214) 220-3939
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price per Offering Registration
be Registered Registered(1) Share(2) Price(2) Fee (2)
------------- ------------- ---------- -------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.0001 per share................ 1,000,000 $17.875 $17,875,000 $4,719
====================================================================================================================================
</TABLE>
1. Represents shares issuable under the Allied Riser Communications
Corporation 2000 Employee Stock Purchase Plan (the "Plan"). Pursuant to
Rule 416, there are also registered hereunder such indeterminate number of
additional shares as may become issuable under the Plan as a result of the
antidilution provisions or with respect to stock splits, stock dividends or
similar transactions in accordance with the Plan.
2. The registration fee with respect to these shares has been computed in
accordance with paragraphs (c) and (h) of Rule 457, based upon the average
of the reported high and low sale prices of shares of the Common Stock on
the Nasdaq National Market System on June 12, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for by Part I of Form S-8 is included in the
description of the Allied Riser Communications Corporation 2000 Employee Stock
Purchase Plan (the "Plan") and will be delivered to persons eligible to purchase
shares pursuant to the Plan as specified by Rule 428(b)(1) under the Securities
Act of 1933, as amended. 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.
Upon written or oral request, Allied Riser Communications Corporation
("Allied Riser") will provide, without charge, the documents incorporated by
reference in Item 3 of Part II of this Registration Statement. Requests for such
information should be directed to Ried R. Zulager, Corporate Secretary, at (214)
210-3000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by Allied Riser are incorporated by
reference, as of their respective dates, in this Registration Statement:
(a) Allied Riser's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, as filed with the Commission on March 23,
2000;
(b) Allied Riser's Quarterly Report on Form 10-Q for the period ended
March 31, 2000, as filed with the Commission on May 15, 2000;
(c) The description of Allied Riser's outstanding common stock
contained in Allied Riser's registration statement on Form 8-A
filed with the Commission on October 25, 1999, as amended on Form
8-A/A filed with the Commission on October 27, 1999.
In addition, all documents subsequently filed by Allied Riser 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 in this Registration Statement and to be a part hereof
from the date of filing of such documents. 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 all purposes of this Registration
Statement to the extent that a statement contained herein or therein or in any
other subsequently filed document that also is or is 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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law, as amended
("DGCL"), allows a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its stockholders for monetary damages for
a breach of fiduciary duty as a director, except where the director breached his
duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit.
Section 145 of the DGCL provides, among other things, that we may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of Allied Riser) by reason of the fact that the
person is or was a director, officer, agent or employee of Allied Riser or is or
was serving at our request as a director, officer, agent, or employee of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding. The power to indemnify applies (a) if such
person is successful on the merits or otherwise in defense of any action, suit
or proceeding, or (b) if such person acted in good faith and in a manner he or
she reasonably believed to be in the best interest, or not opposed to the best
interest, of Allied Riser, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The power to indemnify applies to actions brought by or in the right of Allied
Riser as well, but only to the extent of defense expenses (including attorneys'
fees but excluding amounts paid in settlement) actually and reasonably incurred
and not to any satisfaction of judgment or settlement of the claim itself, and
with the further limitation that in such actions no indemnification shall be
made in the event of any adjudication of negligence or misconduct in the
performance of his or her duties to Allied Riser, unless the court believes that
in the light of all the circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director,
who willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for such actions. A
director who was either absent when the unlawful actions were approved or
dissented at the time may avoid liability by causing his or her dissent to such
actions to be entered in the books containing the minutes of the meetings of the
board of directors at the time such action occurred or immediately after such
absent director receives notice of the unlawful acts.
Our certificate of incorporation includes a provision that eliminates
the personal liability of our directors for monetary damages for breach of
fiduciary duty as a director, except for liability:
-- for any breach of the director's duty of loyalty to Allied Riser
or its stockholders;
-- for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
-- under Section 174 of the DGCL regarding unlawful dividends and
stock purchases; or
-- for any transaction from which the director derived an improper
personal benefit.
These provisions are permitted under Delaware law.
Our by-laws provide that:
-- we must indemnify our directors and officers to the fullest extent
permitted by Delaware law;
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-- we may indemnify our other employees and agents to the same extent
that we indemnified our officers and directors, unless otherwise
determined by our board of directors; and
-- we must advance expenses, as incurred, to our directors and
executive officers in connection with a legal proceeding to the
fullest extent permitted by Delaware law.
The indemnification provisions contained in Allied Riser's certificate
of incorporation and by-laws are not exclusive of any other rights to which a
person may be entitled by law, agreement, vote of stockholders or disinterested
directors or otherwise. In addition, Allied Riser maintains insurance on behalf
of its directors and executive officers insuring them against any liability
asserted against them in their capacities as directors or officers or arising
out of such status.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
Exhibit
Number Description of Exhibit
4.1 Amended and Restated Certificate of Incorporation of Allied
Riser.(1)
4.2 Amended and Restated Bylaws of Allied Riser.(2)
4.3 Form of Common Stock Certificate.(2)
5.1 Opinion of Jones, Day, Reavis & Pogue.(3)
23.1 Consent of Arthur Andersen LLP.(3)
23.2 Consent of Jones, Day, Reavis & Pogue is contained in the opinion
filed as Exhibit 5.1 hereto.
24.1 Power of attorney (included on signature page).
99.1 Allied Riser Communications Corporation 2000 Employee Stock
Purchase Plan.(3)
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 required by Section 10(a)(3) of
the Securities Act;
(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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if
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(1) Previously filed as an Exhibit to Allied Riser's Quarterly Report on
Form 10-Q for the quarterly period ended September 30, 1999 and
incorporated herein by reference.
(2) Previously filed as an Exhibit to Allied Riser's Registration
Statement on Form S-1 (NO. 333-85597) and incorporated herein by
reference.
(3) Filed herewith.
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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 a
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) 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; and
(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, each filing of the
undersigned Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by reference in this 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 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 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.
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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 Dallas, State of Texas on June 15, 2000.
Allied Riser Communications Corporation
(Registrant)
By: /s/ DAVID H. CRAWFORD
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David H. Crawford
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below authorizes David H. Crawford and Todd C. Doshier, each of whom may
act without joinder of the other, the true and lawful attorneys-in-fact with
full power of substitution and resubstitution, to execute in the name of each
such person who is then an officer or director of the Registrant and to file any
amendments to this Registration Statement necessary or advisable to enable the
Registrant to comply with the Securities Act of 1933, as amended, and any rules,
regulations and requirements of the Securities and Exchange Commission, in
respect thereof, in connection with the registration of the securities which are
the subject of this Registration Statement, which amendments may make such
changes in the Registration Statement as such attorney may deem appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
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Signatures Title
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<S> <C> <C>
/s/ DAVID H. CRAWFORD Chief Executive Officer and Director June 15, 2000
--------------------------------------- (Principal Executive Officer)
David H. Crawford
/s/ TODD C. DOSHIER Chief Financial Officer and Senior June 15, 2000
--------------------------------------- Vice President
Todd C. Doshier (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN M. TODD Chief Operating Officer, President June 15, 2000
--------------------------------------- and Director
John M. Todd
/s/ JOHN H. DAVIS Chief Technology Officer and June 14, 2000
--------------------------------------- Director
John H. Davis
/s/ STEPHEN S. SCHOVEE Director and Chairman of the Board June 15, 2000
---------------------------------------
Stephen S. Schovee
Director
---------------------------------------
Rod F. Dammeyer
/s/ R. DAVID SPRENG Director June 15, 2000
---------------------------------------
R. David Spreng
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<S> <C> <C>
/s/ JEFFREY WEITZEN Director June 15, 2000
---------------------------------------
Jeffrey Weitzen
/s/ BLAIR P. WHITAKER Director June 15, 2000
---------------------------------------
Blair P. Whitaker
/s/ MARY A. WILDEROTTER Director June 15, 2000
---------------------------------------
Mary A. Wilderotter
/s/ WILLIAM T. WHITE Director June 14, 2000
---------------------------------------
William T. White
</TABLE>
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INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of Allied
Riser.(2)
4.2 Amended and Restated Bylaws of Allied Riser.(2)
4.3 Form of Common Stock Certificate.(2)
5.1 Opinion of Jones, Day, Reavis & Pogue.(3)
23.1 Consent of Arthur Andersen LLP.(3)
23.2 Consent of Jones, Day, Reavis & Pogue is contained in the opinion
filed as Exhibit 5.1 hereto.
24.1 Power of attorney (included on signature page).
99.1 Allied Riser Communications Corporation 2000 Employee Stock
Purchase Plan.(3)
</TABLE>
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(1) Previously filed as an Exhibit to Allied Riser's Quarterly Report on
Form 10-Q for the quarterly period ended September 30, 1999 and
incorporated herein by reference.
(2) Previously filed as an Exhibit to Allied Riser's Registration
Statement on Form S-1 (NO. 333-85597) and incorporated herein by
reference.
(3) Filed herewith.
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