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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 26, 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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PENTASTAR COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-1502003
(State or jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
1660 WYNKOOP STREET, SUITE 1010
DENVER, COLORADO 80202
(303) 825-4400
(Address and telephone number of principal executive offices)
PENTASTAR COMMUNICATIONS, INC. STOCK OPTION PLAN
(Full title of plan)
ROBERT S. LAZZERI, CHIEF EXECUTIVE OFFICER
PENTASTAR COMMUNICATIONS, INC.
1660 WYNKOOP STREET, SUITE 1010
DENVER, COLORADO 80202
(303) 825-4400
(Name, address and telephone number of agent for service)
Copy to:
LESLIE A. NICHOLS, ESQ.
SHERMAN & HOWARD L.L.C.
633 SEVENTEENTH STREET, SUITE 3000
DENVER, COLORADO 80202
(303) 297-2900
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED PROPOSED MAXIMUM
OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER UNIT PRICE REGISTRATION FEE(1)
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<S> <C> <C> <C> <C>
COMMON STOCK, $ .0001 PAR VALUE 1,500,000 $23.25 $34,875,000 $9,207
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(1) Estimated solely for purposes of calculating the amount of registration fee
in accordance with Rule 457(h) under the Securities Act of 1933 based on
the average of the high and low prices of the Registrant's common stock, as
reported on the Nasdaq National Market on October 23, 2000.
Exhibit Index can be found on page II-7.
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INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
Note: The document(s) containing the employee benefit plan information
required by Item 1 of Part I of this Form and the statement of availability of
registrant information and other information required by Item 2 of Part I of
this Form will be sent or given to participants as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with Rule 428(a) under the Securities Act and the requirements of
Part I of Form S-8, such documents are not being filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. The Registrant shall maintain a file of such documents
in accordance with the provisions of Rule 428(a)(2) under the Securities Act.
Upon request, the Registrant shall furnish to the Commission or its staff a copy
or copies of all the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by PentaStar
Communications, Inc. ("PentaStar" or the "Company") with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act") (File
No. 000-27709), are incorporated by reference herein and shall be deemed to be a
part hereof.
(a) The Company's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act on Form 10-KSB for the year
ended December 31, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since December 31, 1999.
(c) The description of the Company's common stock contained in
the Registration Statement on Form SB-2 (Registration Statement Number
333-85281) and any amendment or report filed for the purpose of
updating such description.
All documents, filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this registration statement 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 in this
registration statement and made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents");
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provided, however, that the documents enumerated above or subsequently filed by
the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
in each year during which the offering made by this registration statement is in
effect prior to the filing with the Commission of the Company's Annual Report on
Form 10-KSB covering such year shall not be Incorporated Documents or be
incorporated by reference in this Registration Statement or be a part hereof
from and after the filing of such Annual Report on Form 10-KSB.
Any statement contained in an Incorporated Document 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
Incorporated Document 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.
Under Section 145 of the Delaware General Corporation Law, PentaStar
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act.
PentaStar's certificate of incorporation provides for the elimination
of liability for monetary damages for breach of the directors' fiduciary duty of
care to PentaStar and its stockholders. These provisions do not eliminate the
directors' duty of care and, in appropriate circumstances, equitable remedies
such as injunctive or other forms of nonmonetary relief will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to PentaStar or its
stockholders, for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
PentaStar intends to enter into indemnity agreements with each of the
directors and executive officers of PentaStar pursuant to which PentaStar will
indemnify each director and executive officer against expenses and losses
incurred for claims brought against them by reason of their being a director or
executive officer of PentaStar, and PentaStar has obtained directors' and
officers' liability insurance.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
See Exhibit Index on page II-7.
ITEM 9. UNDERTAKINGS.
(a) The Company 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;
(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 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 Company
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that are
incorporated by reference in the 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.
(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 Company hereby undertakes that, for the purpose of determining
any liability under the Securities Act, each filing of the issuer's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein
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and the offering of such securities at the time shall be deemed to be the
initial bona fide offering hereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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, as amended,
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 Denver, State of Colorado, on October 26, 2000.
PENTASTAR COMMUNICATIONS, INC.
By: /s/ Robert S. Lazzeri
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Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert S. Lazzeri and David L. Dunham,
and each of them, his true and lawful attorneys-in-fact and agents, each with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
pre-effective and post-effective amendments) to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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/s/ Robert S. Lazzeri Chief Executive Officer and October 26, 2000
--------------------------- Director
Robert S. Lazzeri (Principal Executive Officer)
/s/ David L. Dunham Chief Financial Officer and October 26, 2000
--------------------------- Treasurer
David L. Dunham (Principal Financial and
Accounting Officer
Director October __, 2000
---------------------------
Carleton A. Brown
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Signature Title Date
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<S> <C> <C>
Director October __, 2000
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Reynaldo U. Ortiz
/s/ Richard M. Tyler Director October 26, 2000
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Richard M. Tyler
/s/ Craig J. Zoellner Director October 26, 2000
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Craig J. Zoellner
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EXHIBIT INDEX
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EXHIBIT
NO. DESCRIPTION
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5 Opinion of Sherman & Howard L.L.C. as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Sherman & Howard L.L.C. (included in Exhibit 5).
24 Power of Attorney is included on the signature pages of the
registration statement.
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