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As filed with the Securities and Exchange Commission on April 11, 2000.
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KNOLOGY, INC.
(Exact Name of Issuer as Specified in its Charter)
DELAWARE 52-242458
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1241 O.G. SKINNER DRIVE
WEST POINT, GEORGIA 31833
(706) 645-8553
(Address, including zip code, and telephone number
of Principal Executive Offices)
KNOLOGY, INC. 1999 LONG-TERM INCENTIVE PLAN
KNOLOGY, INC. 1995 STOCK OPTION PLAN
(Full Titles of the Plan)
CHAD S. WACHTER COPY TO:
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY LAURA G. THATCHER
KNOLOGY, INC. ALSTON & BIRD LLP
1241 O.G. SKINNER DRIVE ONE ATLANTIC CENTER
WEST POINT, GEORGIA 31833 1201 WEST PEACHTREE STREET, NW
(706) 645-8553 ATLANTA, GEORGIA 30309-3424
(Name, address, including zip code, and (404) 881-7546
telephone number, including area code,
of agent for service)
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration Fee
(1) Per Unit Offering Price
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 8,000,000 $4.75 (2) $38,000,000 (2) $ 10,032.00
- ------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 6,648,868 $2.42 (3) $16,090,261 (3) $ 4,248.00
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Amount to be registered includes 8,000,000 shares to be issued pursuant to
the grant or exercise of awards to employees, officers, consultants and
directors under the KNOLOGY, Inc. 1999 Long-Term Incentive Plan, and
6,648,868 additional shares under the KNOLOGY, Inc. 1995 Stock Option Plan.
(2) Determined in accordance with Rule 457(h), the registration fee calculation
is based on the book value of the Company's Common Stock determined as of
March 30, 2000.
(3) Determined in accordance with Rule 457(h), the registration fee calculation
is based on the weighted average exercise price of options outstanding
under the plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement
will be sent or given to participants in the Plans as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended.
(b) Upon written or oral request, Knology, Inc. (the "Company") will
provide, without charge, the documents incorporated by reference in Item 3 of
Part II of this Registration Statement. The documents are incorporated by
reference in the Section 10(a) prospectus. The Company will also provide,
without charge, upon written or oral request, other documents required to be
delivered to employees pursuant to Rule 428(b). Requests for the above mentioned
information should be directed to Chad S. Wachter, Vice President, General
Counsel and Secretary, at (706) 645-8553.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") are incorporated herein by reference
and are deemed to be a part hereof from the date of the filing of such
documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(2) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1999;
(3) All other documents subsequently filed by the Company pursuant to
Section 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 that indicates that all
securities offered have been sold or that deregisters all securities that remain
unsold.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference 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.
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ITEM 4. DESCRIPTION OF SECURITIES.
The class of Company's securities to be offered is not registered under
Section 12 of the Securities Exchange Act of 1934. The information required by
Item 202 of Regulation S-K is provided by incorporation by reference to the
information under "Description of Securities" in Amendment No. 7 to the
Company's S-1 Registration Statement (No. 333-89179) as filed on February 4,
2000.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware corporation law, a corporation may
indemnify its directors, officers, employees and agents and its former
directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorneys' fees), as well as judgments, fines and
settlements in non derivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in which they or
any of them were or are made parties or are threatened to be made parties by
reason of their serving or having served in such capacity. The Delaware
Corporation Law provides, however, that such person must have acted in good
faith and in a manner such person reasonably believed to be in (or not) the best
interests of the corporation and, in the case of a criminal action, such person
must have had no reasonable cause to believe his or her conduct was unlawful. In
addition, the Delaware Corporation Law does not permit indemnification in an
action or suit by or in the right of the corporation, where such person has been
adjudged liable to the corporation, unless, and only to the extent that, a court
determines that such person fairly and reasonably is entitled to indemnity for
costs the court deems proper in light of liability adjudication. Indemnity is
mandatory to the extent a claim, issue or matter has been successfully defended.
Our Certificate of Incorporation and our Bylaws contain provisions that further
provide for the indemnification of our directors and officers to the fullest
extent permitted by the Delaware Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
ITEM 8. EXHIBITS(1)
Exhibit Number Description
-------------- -----------
4.1 Certificate of Incorporation of the Registrant, as
amended (incorporated by reference to Exhibit 3.1
to Registration Statement on Form S-1/A dated
December 27, 1999, File No. 333-89179).
4.2 Bylaws of the Registrant, as amended (incorporated
by reference to Exhibit 3.2 to Registration
Statement on Form S-1/A dated December 27, 1999,
File No. 333-89179).
- -----------
(1) Exhibits are numbered in accordance with Item 601 of Regulation S-K.
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4.3 Specimen Certificate of Shares of Common Stock, par
value $0.01 (incorporated by reference to Exhibit
4.1 to Registration Statement on Form S-1/A dated
December 27, 1999, File No. 333-89179).
5 Opinion of Counsel.
23.1 Consent of Counsel (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on signature page).
99.1 KNOLOGY, Inc. 1999 Long-Term Incentive Plan
(incorporated by reference to Exhibit 10.66 to
Registration Statement on Form S-1/A dated
December 6, 1999, File No. 333-89179).
99.2 KNOLOGY, Inc. 1995 Stock Option Plan (incorporated
by reference to Exhibit 10.65 to Registration
Statement on Form S-1/A dated December 6, 1999,
File No. 333-89179).
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 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) above do
not apply if the registration statement is on Form S-3 or Form S-8, and 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 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 of 1933, each such post-effective amendment shall be deemed
to be a new registration
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statement relating to the securities being 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
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 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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 of this
Part II, 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.
(signatures on following page)
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
Registrant, KNOLOGY, Inc., 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 West Point, State of Georgia, on
March 31, 2000.
KNOLOGY, INC.
By: /s/ RODGER L. JOHNSON
-----------------------------------
Rodger L. Johnson
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Chad S. Wachter, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including 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 attorney-in-fact and agent, 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 all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or their or his 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 by the following persons in the
capacities indicated as of March 31, 2000.
Signatures Title
---------- -----
/s/ RODGER L. JOHNSON President, Chief Executive Officer
--------------------------- And Director
Rodger L. Johnson (Principal Executive Officer)
/s/ ROBERT K. MILLS Chief Financial Officer, (Principal
--------------------------- Financial and Accounting Officer)
Robert K. Mills
/s/ CAMPBELL B. LANIER, III Chairman of the Board of Directors
---------------------------
Campbell B. Lanier, III
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/s/ RICHARD BODMAN Director
---------------------------
Richard Bodman
/s/ ALAN A. BURGESS Director
---------------------------
Alan A. Burgess
/s/ DONALD W. BURTON Director
---------------------------
Donald W. Burton
/s/ L. CHARLES HILTON, JR. Director
---------------------------
L. Charles Hilton, Jr.
WILLIAM H. SCOTT, III Director
---------------------------
William H. Scott, III
/s/ DONALD W. WEBBER Director
---------------------------
Donald W. Webber
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EXHIBIT INDEX
TO
FORM S-8
Exhibit Number Description
-------------- -----------
4.1 Certificate of Incorporation of the Registrant, as
amended (incorporated by reference to Exhibit 3.1
to Registration Statement on Form S-1/A dated
December 27, 1999, File No. 333-89179).
4.2 Bylaws of the Registrant, as amended (incorporated
by reference to Exhibit 3.2 to Registration
Statement on Form S-1/A dated December 27, 1999,
File No. 333-89179).
4.3 Specimen Certificate of Shares of Common Stock, par
value $0.01 (incorporated by reference to Exhibit
4.1 to Registration Statement on Form S-1/A dated
December 27, 1999, File No. 333-89179).
5 Opinion of Counsel.
23.1 Consent of Counsel (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on signature page).
99.1 KNOLOGY, Inc. 1999 Long-Term Incentive Plan
(incorporated by reference to Exhibit 10.66 to
Registration Statement on Form S-1/A dated
December 6, 1999, File No. 333-89179).
99.2 KNOLOGY, Inc. 1995 Stock Option Plan (incorporated
by reference to Exhibit 10.65 to Registration
Statement on Form S-1/A dated December 6, 1999,
File No. 333-89179).
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EXHIBIT 5
OPINION OF ALSTON & BIRD, LLP
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ALSTON&BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777 Telex: 54-2996
April 11, 2000
KNOLOGY, Inc.
1241 O.G. Skinner Drive
West Point, Georgia 31833
Re: Form S-8 Registration Statement --
KNOLOGY, Inc. Long-Term Incentive Plan
KNOLOGY, Inc. 1995 Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel for KNOLOGY, Inc., a Delaware corporation (the
"Corporation"), in connection with the referenced Registration Statement on Form
S-8 (the "Registration Statement") being filed by the Corporation with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act") to register under the Securities Act
14,648,868 shares of the Corporation's common stock, $0.01 par value ("Common
Stock"), that may be issued pursuant to the KNOLOGY, Inc. 1999 Long-Term
Incentive Plan and the KNOLOGY, Inc. 1995 Stock Option Plan (the "Plans"). This
opinion letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of
Regulation S-K.
We have examined the Plans, the Amended and Restated Certificate of
Incorporation of the Corporation, the Bylaws of the Corporation, records of
proceedings of the Board of Directors of the Corporation deemed by us to be
relevant to this opinion letter, the Registration Statement and other documents
and agreements we deemed necessary for purposes of expressing the opinion set
forth herein. We also have made such further legal and factual examinations and
investigations as we deemed necessary for purposes of expressing the opinion set
forth herein.
As to certain factual matters relevant to this opinion letter, we have
relied upon certificates and statements of officers of the Corporation and
certificates of public officials. Except to the extent expressly set forth
herein, we have made no independent investigations with regard thereto, and,
accordingly, we do not express any opinion as to matters that might have been
disclosed by independent verification.
This opinion letter is provided to the Corporation and the Commission
for their use solely in connection with the transactions contemplated by the
Registration Statement and may not be used, circulated, quoted or otherwise
relied upon by any other person or for any other purpose without our express
written consent. The only opinion rendered by us consists of those matters set
forth in the sixth paragraph hereof, and no opinion may be implied or inferred
beyond those expressly stated.
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KNOLOGY, Inc.
April 11, 2000
Page 2
Our opinion set forth below is limited to the General Corporation Law
of the State of Delaware, applicable provisions of the Constitution of the State
of Delaware and reported judicial decisions interpreting such General
Corporation Law and Constitution, and we do not express any opinion herein
concerning any other laws.
Based on the foregoing, it is our opinion that the 14,648,868 shares of
Common Stock covered by the Registration Statement and to be issued pursuant to
the Plans, when issued in accordance with the terms and conditions of the Plans,
will be legally and validly issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the use of our name wherever appearing in the
Registration Statement. In giving such consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission thereunder.
Sincerely,
ALSTON & BIRD LLP
By: /s/ Laura G. Thatcher
-------------------------------
Laura G. Thatcher, Partner
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EXHIBIT 23.2
CONSENT OF ARTHUR ANDERSEN LLP
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated February 25, 2000 for the year ended December 31, 1999, included in
Knology, Inc.'s Annual Report on Form 10-K.
/s/ Arthur Andersen LLP
Atlanta, GA
April 10, 2000
