As filed with the Securities and Exchange Commission on November 30, 1999
Registration No. 333-86971
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
Post-Effective Amendment No. 2
on FORM S-8
to
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
CINCINNATI BELL INC.
(Exact name of registrant as specified in its charter)
Ohio 31-1056105
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
----------------------
201 East Fourth Street, 102-760
P.O. Box 2301
Cincinnati, Ohio 45201-2301
Telephone: (513) 397-9900
(Address, including zip code, and telephone number,
including area code, of Registrant's
principal executive offices)
----------------------
IXC Communications, Inc. 401(k) Plan
(Full Title of the Plan)
----------------------
THOMAS E. TAYLOR, ESQ.
Cincinnati Bell Inc.
201 East Fourth Street, 102-760
P.O. Box 2301
Cincinnati, Ohio 45201-2301
Telephone: (513) 397-9900
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price per aggregate offering registration fee
to be registered registered (1)(2) share price
- ------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 per 500,000 shares (3) (3) (3)
share, and related Preferred Stock
Purchase Rights
- ------------------------------------------------------ -------------------------------------------------------------
</TABLE>
(1) These shares were originally registered on the Registration Statement
on Form S-4 to which this Amendment relates.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933
(the "1933 Act"), this Registration Statement also covers an
indeterminate amount of participation interests in the IXC
Communications, Inc. 401(k) Plan (the "IXC Plan").
(3) Not applicable. All filing fees payable in connection with the
registration of these securities were paid in connection with the filing
of preliminary proxy materials of Cincinnati Bell Inc. and IXC
Communications, Inc. on August 18, 1999 and the filing by Cincinnati Bell
of the Registration Statement on Form S-4 on September 13, 1999, to
register 103,152,121 shares of Cincinnati Bell Inc. Common Stock, par
value $0.01 per share, issuable to stockholders of IXC Communications,
Inc., including the 500,000 shares which may be issued pursuant to the
IXC Plan. See "Introductory Statement".
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
INTRODUCTORY STATEMENT
Cincinnati Bell Inc. ("Cincinnati Bell") hereby amends its
Registration Statement on Form S-4 (Registration No. 333-86971) (the "Form
S-4") by filing this Post-Effective Amendment No. 2 on Form S-8 (the
"Post-Effective Amendment") relating to the sale of up to 500,000 shares of
common stock, par value $0.01 per share, of Cincinnati Bell ("Cincinnati Bell
Common Stock") issuable under the IXC Communications, Inc. 401(k) Plan (the
"IXC Plan"). This Post-Effective Amendment also covers the associated
preferred stock purchase rights issuable pursuant to a Rights Agreement dated
as of April 29, 1999, as amended, between Cincinnati Bell and The Fifth Third
Bank, as rights agent. This Post-Effective Amendment is intended to
supplement, and does not supersede, the Post-Effective Amendment No. 1 on Form
S-8 to the Form S-4 filed with the Securities and Exchange Commision (the
"SEC") on November 9, 1999, which relates to 17,661,042 shares of Cincinnati
Bell Common Stock issuable upon the exercise of stock options granted under
certain option plans of IXC Communications, Inc., a Delaware corporation
("IXC").
On November 9, 1999, Ivory Merger Inc., a Delaware corporation
and wholly owned subsidiary of Cincinnati Bell ("Merger Sub"), was merged (the
"Merger") with and into IXC. As a result of the Merger, IXC became a
subsidiary of Cincinnati Bell and each outstanding share (other than shares
owned by IXC, Cincinnati Bell or Merger Sub) of common stock, par value $0.01
per share, of IXC ("IXC Common Stock"), was converted into the right to
receive 2.0976 shares of Cincinnati Bell Common Stock. Following the Merger,
Cincinnati Bell and IXC will maintain the IXC Plan and allow participating
employees of IXC to elect to invest their contributions in Cincinnati Bell
Common Stock instead of previously available IXC Common Stock.
The designation of the Post-Effective Amendment as Registration No.
333-86971 denotes that the Post-Effective Amendment relates only to the shares
of Cincinnati Bell Common Stock issuable upon the election by participating
employees of IXC under the IXC Plan of investment of their contributions in
Cincinnati Bell Common Stock (and an indeterminate amount of participation
interests in the IXC Plan) and that this is the second Post-Effective Amendment
to the Form S-4 filed with respect to such shares.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed by Cincinnati Bell with the
SEC and are incorporated herein by reference (SEC File No. 1-8519):
(1) Annual Report on Form 10-K for the fiscal year ended December 31,
1998.
(2) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999,
June 30, 1999 and September 30, 1999.
(3) Current Reports on Form 8-K filed on January 15, 1999, February 8,
1999, April 20, 1999, July 21, 1999, July 23, 1999, October 13, 1999,
October 22, 1999, November 10, 1999 and November 12, 1999.
(4) The description of Cincinnati Bell Common Stock set forth in
Cincinnati Bell's Registration Statement on Form S-4 filed with the
SEC on September 13, 1999.
The following document has been filed by the IXC Plan with the SEC and
is incorporated herein by reference (SEC File No. 00-20803):
(1) Annual Report on Form 11-K for the fiscal year ended December 31,
1998.
All documents filed subsequent to the date hereof by Cincinnati Bell or
the IXC Plan with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934 (the "1934 Act") and prior to the filing
of a post-effective amendment hereto 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 herein 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"); provided, however, that the documents enumerated above or
subsequently filed by Cincinnati Bell pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act in each year during which the offering made hereby
is in effect prior to the filing with the SEC of Cincinnati Bell's Annual
Report on Form 10-K covering such year shall not be Incorporated Documents or
be incorporated by reference herein or be a part hereof from and after the
filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof 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 hereof.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers
With certain exceptions to the following limitation, Ohio law
provides that a director is liable in damages for any action he or she takes
or fails to take only if it is proved by clear and convincing evidence in a
court of competent jurisdiction that such action or failure to act was taken
with deliberate intent to cause injury to the corporation or undertaken with
reckless disregard for the best interests of the corporation.
Under Ohio law, a corporation may indemnify any person who was or is
a party or is threatened to be made a party to any proceeding, other than an
action by or in the right of the corporation, because the person is or was a
director or officer, against liability reasonably incurred by the director or
officer in connection with the proceeding if either:
o the director or officer acted in good faith and in a manner the
director or officer reasonably believed to be in or not opposed
to the best interests of the corporation or
o with respect to any criminal action or proceeding, the director
or officer had no reasonable cause to believe the director's or
officer's conduct was unlawful.
Under Ohio law, a corporation may indemnify any person who was or is
a party or is threatened to be made a party to any proceeding, by or in the
right of the corporation to procure a judgment in its favor, because the
person is or was a director or officer against liability reasonably incurred
by the director or officer in connection with the proceeding if the director
or officer acted in good faith and in a manner the director or officer
reasonably believed to be in or not opposed to the best interests of the
corporation, except that a corporation may not indemnify a director or officer
if either:
o the director or officer has been adjudged to be liable for
negligence or misconduct in the performance of the director's or
officer's duty to the corporation unless and only to the extent
that the court in which the proceeding was brought determines
that, in view of all the circumstances of the case, the director
or officer is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper or
o the only liability asserted against a director in a proceeding
is for the director voting for or assenting to the following:
o the payment of a dividend or distribution, the making of a
distribution of assets to shareholders, or the purchase or
redemption of the corporation's own shares in violation of
Ohio law or the corporation's articles of incorporation
o a distribution of assets to shareholders during the winding
up of the affairs of the corporation, or dissolution or
otherwise, without the payment of all known obligations of
the corporation or without making adequate provision for
their payment or
o the making of a loan, other than in the usual course of
business, to an officer, director or shareholder of the
corporation other than in the case of at the time of the
making of the loan, a majority of the disinterested
directors of the corporation voted for the loan and, taking
into account the terms and provisions of the loan and other
relevant factors, determined that the making of the loan
could reasonably be expected to benefit the corporation.
Under Ohio law, to the extent that a director or officer has been
successful on the merits or otherwise in defense of the proceeding, the
director or officer must be indemnified against expenses actually and
reasonably incurred by him or her in connection with that proceeding.
Ohio law provides that any indemnification for a director or
officer, unless ordered by a court, is subject to a determination that the
director or officer has met the applicable standard of conduct. The
determination will be made by either:
<PAGE>
o a majority vote of a quorum of the directors who are not parties
to such proceeding
o if there is not a quorum of such directors, or if a majority
vote of such directors so directs, independent legal counsel in
a written opinion
o by the shareholders or
o by the court of common pleas or by the court in which the
proceeding was brought.
Ohio law provides that the corporation must pay expenses as they are
incurred by the director or officer in defending the proceeding if the
director or officer undertakes to:
o repay the amount if it is determined that the director's or
officer's action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless regard for the best
interests of the corporation and
o reasonably cooperate with the corporation concerning the
proceeding.
Under Ohio law, a corporation may advance expenses before the final
disposition of a proceeding if the director or officer undertakes to repay the
amount if it is ultimately determined that the director or officer is not
entitled to indemnification.
Ohio law gives a corporation the power to purchase and maintain
insurance on behalf of any director or officer against any liability asserted
against, and incurred in his or her capacity as a director or officer, whether
or not the corporation would have the power to indemnify the director or
officer against this liability under Ohio law.
The Cincinnati Bell amended regulations provide that Cincinnati Bell
will indemnify directors and officers to the fullest extent permitted by law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(1) Cincinnati Bell hereby undertakes to file, during any period in
which offers or sales are being made, a post-effective amendment to this
registration statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "1933 Act");
(b) 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
(c) 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 1(a) and 1(b) 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 Cincinnati Bell pursuant
to Section 13 or Section 15(d) of the 1934 Act that are incorporated by
reference in this registration statement.
<PAGE>
(2) Cincinnati Bell hereby undertakes that, for the purpose of
determining any liability under the 1933 Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) Cincinnati Bell hereby undertakes 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.
(4) Cincinnati Bell and the IXC Plan hereby undertake that, for
purposes of determining any liability under the 1933 Act, each filing of
Cincinnati Bell's annual report pursuant to Section 13(a) or Section 15(d) of
the 1934 Act and each filing of the IXC Plan's annual report pursuant to
Section 15(d) of the 1934 Act that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to directors, officers and controlling persons of
Cincinnati Bell pursuant to the foregoing provisions, or otherwise, Cincinnati
Bell has been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Cincinnati Bell of expenses incurred or
paid by a director, officer or controlling person of Cincinnati Bell 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, Cincinnati Bell 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 1933 Act and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
CINCINNATI BELL INC.
Pursuant to the requirements of the Securities Act of 1933,
Cincinnati Bell 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, which is a post-effective amendment to a registration
statement on Form S-4, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cincinnati, State of Ohio, on the
30th day of November, 1999.
CINCINNATI BELL INC.
By:/s/ Thomas E. Taylor
------------------------------------
Name: Thomas E. Taylor
Title: General Counsel and Secretary
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 on the date indicated.
Signature Title Date
--------- ----- ----
President, Chief Executive November 30, 1999
* Officer and Director
------------------------ (Chief Executive Officer)
Richard G. Ellenberger
Chief Financial Officer November 30, 1999
* (Principal Accounting and
------------------------ Financial Officer)
Kevin W. Mooney
* Director November 30, 1999
------------------------
Phillip R. Cox
* Director November 30, 1999
------------------------
J. Taylor Crandall
* Director November 30, 1999
------------------------
William A. Friedlander
* Director November 30, 1999
------------------------
Karen M. Hoguet
* Director November 30, 1999
------------------------
Daniel J. Meyer
* Director November 30, 1999
------------------------
James D. Kiggen
<PAGE>
Signature Title Date
--------- ----- ----
* Director November 30, 1999
------------------------
John T. LaMacchia
* Director November 30, 1999
------------------------
Mary D. Nelson
* Director November 30, 1999
------------------------
David B. Sharrock
*By: /s/ Thomas E. Taylor
----------------------------
Thomas E. Taylor
General Counsel and Secretary
IXC COMMUNICATIONS, INC. 401(k) PLAN
Pursuant to the requirements of the Securities Act of 1933, the IXC
Plan's Administrative Committee has duly caused this registration statement,
which is a post-effective amendment to a registration statement on Form S-4,
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Austin, State of Texas, on November 30, 1999.
IXC COMMUNICATIONS, INC. 401(k) PLAN
By: /s/ Jeffrey C. Smith
-----------------------------------------
Name: Jeffrey C. Smith
Title: Administrative Committee Member
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 Provisions of the Amended Articles of Incorporation
of Cincinnati Bell effective November 9, 1989, which
define the rights of security holders of Cincinnati
Bell (incorporated by reference to Exhibit (3)(a) to
Cincinnati Bell's Annual Report on Form 10-K for the
quarterly period ended December 31, 1989, SEC File
No. 1-8519).
4.2 Provisions of the Amended Regulations of Cincinnati
Bell which define the rights of securityholders of
Cincinnati Bell (incorporated by reference to
Exhibit 3.2 to Cincinnati Bell's Registration
Statement on Form S-3 filed February 26, 1985, SEC
File No. 2-96054).
4.3 Rights Agreement dated as of April 29, 1997, as
amended, between Cincinnati Bell and The Fifth Third
Bank, as Rights Agent, including the form of rights
certificate attached as Exhibit B thereto
(incorporated by reference to Exhibit 4.1 to
Cincinnati Bell's Registration Statement on Form 8-A
filed May 1, 1997, SEC File No. 1-8519, Exhibit 1 to
Amendment No. 1 to the Registration Statement on
Form 8-A/A filed August 6, 1999, SEC File No.
1-8519).
5.2 Internal Revenue Service Determination Letter (incorporated
herein by reference to Exhibit 5.1 to the Plan's Annual Report
on Form 11-K filed June 29, 1999 (SEC Registration No.
333-66367).
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney*
- --------------------------
* Previously Filed
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Post-Effective
Amendment No. 2 on Form S-8 to the Registration Statement on Form S-4
(Registration No. 333-86971) of Cincinnati Bell Inc. of our report dated March
12, 1999 relating to the financial statements, which appears in Cincinnati
Bell Inc.'s 1998 Annual Report to Shareholders, which is incorporated by
reference in its Annual Report on Form 10-K for the year ended December 31,
1998. We also consent to the incorporation by reference of our report dated
March 29, 1999 relating to the financial statement schedule, which appears in
such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
Cincinnati, Ohio
November 24, 1999
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
(No. 333-86971) on Form S-8 of Cincinnati Bell Inc. of our report dated June
23, 1999 with respect to the financial statements and schedules of IXC
Communications, Inc. 401(k) Plan included in the Plan's Annual Report on Form
11-K for the year ended December 31, 1998.
/s/ Ernst & Young LLP
Austin, Texas
November 23, 1999
