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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 25, 2000
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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ADVANCED SWITCHING COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 3576 54-1865834
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ADVANCED SWITCHING COMMUNICATIONS, INC. 2000 STOCK INCENTIVE PLAN
ADVANCED SWITCHING COMMUNICATIONS, INC. 1999 NONQUALIFIED STOCK OPTION PLAN
ADVANCED SWITCHING COMMUNICATIONS, INC. SECOND 1998 NONQUALIFIED STOCK
OPTION PLAN
ADVANCED SWITCHING COMMUNICATIONS, INC. 1998 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plans)
ASGHAR D. MOSTAFA
PRESIDENT
8330 BOONE BOULEVARD
VIENNA, VA 22812
(703) 448-5540
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE FEE
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Common stock, $0.0025 par value 10,159,000(1) $4.48-$13.47(2) $88,095,747 (2) $23,257
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(1) Includes (i) 5,422,245 shares issuable upon the exercise of
outstanding options granted under the Advanced Switching
Communications, Inc. 1998 Nonqualified Stock Option Plan (the "1998
Plan"), the Advanced Switching Communications, Inc. Second 1998
Nonqualified Stock Option Plan (the "Second 1998 Plan"), the
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Advanced Switching Communications, Inc. 1999 Nonqualified Stock
Option Plan (the "1999 Plan") and the Advanced Switching
Communications, Inc. 2000 Stock Incentive Plan (the "2000 Plan")
and (ii) 4,736,755 shares available to be issued in connection with
future options or awards under the 2000 Plan.
(2) The proposed maximum offering price per share is estimated in
accordance with Rule 457 (h) under the Securities Act. With respect
to the 5,422,245 shares subject to outstanding options, the proposed
maximum offering price per share is based on the weighted average
exercise price of $4.48 per share. With respect to the 4,736,755
shares, the proposed maximum offering price per share is based on the
average of the high and low sale prices of $13.47 per share for the
Registrant's Common Stock on the Nasdaq National Market on October
24, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the plan information required by Item 1 of
Form S-8 and the statement of availability of registrant information and any
other information required by Item 2 of Form S-8 will be sent or given to
participants of the Advanced Switching Communications, Inc. 2000 Stock Incentive
Plan (the "2000 Plan"), the Advanced Switching Communications, Inc. 1999
Nonqualified Stock Option Plan (the "1999 Plan"), the Advanced Switching
Communications, Inc. Second 1998 Nonqualified Stock Option Plan (the "Second
1998") and the Advanced Switching Communications, Inc. 1998 Nonqualifed Stock
Option Plan (the "1998 Plan") as specified by Rule 428 under the Securities Act
of 1933. In accordance with Rule 428 and the requirements of Part I of Form S-8,
such documents are not being filed with the Securities and Exchange Commission
either as part of this registration statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act of 1933. Advanced
Switching Communications, Inc. will maintain a file of such documents in
accordance with the provisions of Rule 428. Upon request, Advanced Switching
Communications, Inc. will furnish to the Securities and Exchange Commission or
its staff a copy or copies of all of the documents included in that file.
References herein to "ASC" or "the Company" shall mean Advanced
Switching Communications, Inc., a Delaware corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which were filed by ASC with the Securities and
Exchange Commission, are incorporated by reference in this registration
statement:
1. The Company's prospectus filed with the Commission on October 5, 2000
pursuant to Rule 424(b) under the Securities Act.
2. The description of ASC's Common Stock, par value $0.0025 per share,
which is registered under Section 12 of the Securities Exchange Act of 1934,
contained in ASC's Registration Statement on Form 8-A filed with the Securities
and Exchange Commission on September 14, 2000, which incorporates by reference
the description of the Common Stock contained in the Registration Statement on
Form S-1 (No. 333-40624) (originally filed on June 30, 2000), as amended,
including any amendment or report filed for the purpose of updating that
description. That description of the Common Stock contained in the Registration
Statement on Form S-1 is also incorporated by reference.
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All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the
filing of a post-effective amendment 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 to
be a part hereof from the date of filing of such 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 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.
Section 145 of the Delaware General Corporation law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent under the circumstances set forth therein.
Article VII of the Registrant's Amended and Restated Certificate of
Incorporation eliminates liability of directors of the Registrant to the
Registrant or its shareholders for monetary damages for breach of fiduciary duty
to the extent permitted by Section 102(b)(7) of the General Corporation Law of
the State of Delaware. Article VII of the Registrant's Amended and Restated
Certificate of Incorporation requires the Registrant to indemnify the
Registrant's directors and officers to the extent permitted under Section 145 of
the Delaware General Corporation Law. Article VII of the Registrant's Amended
and Restated Certificate of Incorporation also provides that the Registrant
shall 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
whether civil, criminal, administrative, or investigative, by reason of the
fact that he is or was a director or officer of the Registrant, or is or was
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, in accordance with provisions corresponding to Section 145 of the
Delaware General Corporation Law. Further, the Registrant's Amended and
Restated Certificate of Incorporation provides that any person, other than an
officer or director, who was or is a party or is threatened to be made a party
to any threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative, or investigative, by reason of the fact
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that he is or was an employee or agent of the Registrant, or was serving at the
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise, and who
desires indemnification shall make written application for such indemnification
to the Board of Directors for its determination that indemnification is
appropriate, and if so, to what extent. The Registrant's Restated Bylaws also
provide that the Registrant may indemnify, to the extent of the provisions set
forth therein, any person other than an officer or director who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was an employee or agent
of the Registrant, or was serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, if such person makes written application
for such indemnification to the Registrant Board and the Registrant Board
determines that indemnification is appropriate and the extent thereof. The
Registrant's Restated Bylaws further provide that the indemnification described
therein is not exclusive, and shall not exclude any other rights to which the
person seeking to be indemnified may be entitled under statute, any bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in his official capacity and to his action in another capacity
while holding such office.
The above discussion of Section 145 and of the Registrant's Amended and
Restated Certificate of Incorporation and Restated Bylaws is not intended to be
exhaustive and is respectively qualified in its entirety by such statute, the
Amended and Restated Certificate of Incorporation and the Restated By-laws. The
Registrant intends to obtain primary and excess insurance policies insuring its
directors and officers and those of its subsidiaries against certain liabilities
they may incur in their capacity as directors and officers. Under such policies,
the insurer, on behalf of, may also pay amounts for which the Registrant has
granted indemnification to the directors or officers.
Additionally, reference is made to the Underwriting Agreement filed as
Exhibit 1.1 to the Registration Statement on Form S-1, as amended, File No.
333-40624, which provides for indemnification by the underwriters of ASC, its
directors and officers who sign the Registration Statement on Form S-1 and
persons who control ASC, under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following documents are filed as exhibits to this registration
statement:
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EXHIBIT DESCRIPTION
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*3.1 Restated Certificate of Incorporation of the Company.
*3.2 Restated By-laws of the Company.
*4.1 Form of certificate of common stock.
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*4.2 Advanced Switching Communications, Inc. 1998 Nonqualified Stock Option
Plan.
*4.3 Advanced Switching Communications Inc. Second 1998 Nonqualified Stock
Option Plan.
*4.4 Advanced Switching Communications, Inc. 1999 Nonqualified Stock Option
Plan.
*4.5 Advanced Switching Communications, Inc. 2000 Stock Incentive Plan.
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson.
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in
Exhibit 5.1 above).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (see signature page).
*27.1 Financial data schedule.
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*Incorporated by reference to our Registration Statement on Form
S-1, File No. 333 -40624.
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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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this 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 to such information
in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply, 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 Securities and Exchange Commission by ASC
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration
statement.
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(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 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of ASC pursuant to the foregoing provisions, or otherwise, ASC has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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, ASC 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 of 1933 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 Town of Vienna, State of Virginia, on October 25, 2000.
ADVANCED SWITCHING
COMMUNICATIONS, INC.
By: /s/ ASGHAR D. MOSTAFA
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Asghar D. Mostafa
President and Chief Executive Officer
(Principal Executive Officer)
KNOW ALL PERSONS BY THESE PRESENT, that each individual whose signature
appears below constitutes and appoints Asghar D. Mostafa and Harry J. D'Andrea
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this registration statement, and
to file the same, with all exhibits thereto and to all 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 and necessary to be done in
and about the premises, as fully to confirming all that said attorneys-in-fact
and agents or any of them, or his or their 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/ ASGHAR D. MOSTAFA President, Chief Executive Officer October 25, 2000
---------------------- and Director (Principal Executive
Asghar D. Mostafa Officer)
/s/ HARRY J. D'ANDREA Chief Financial Officer (Principal October 25, 2000
---------------------- Financial and Accounting Officer)
Harry J. D'Andrea
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/s/ BETSY S. ATKINS Director October 25, 2000
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Betsy S. Atkins
/s/ HENRY G. BAKER Director October 25, 2000
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Henry G. Baker
/s/ ROBERT TED ENLOE, III Director October 25, 2000
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Robert Ted Enloe, III
/s/ RICHARD H. KIMBALL Director October 25, 2000
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Richard H. Kimball
/s/ ARTHUR J. MARKS Director October 25, 2000
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Arthur J. Marks
/s/ EDWARD W. SCOTT Director October 25, 2000
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Edward W. Scott
/s/ JOHN W. SEAZHOLTZ Director October 25, 2000
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John W. Seazholtz
/s/ RONALD S. WESTERNIK Director October 25, 2000
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Ronald S. Westernik
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