As filed with the Securities and Exchange Commission on December 27, 1999
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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INTERNET COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
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COLORADO 84-1095516
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
7100 EAST BELLEVIEW AVENUE
SUITE 201
ENGLEWOOD, COLORADO 80111
(303) 770-7600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
INTERNET COMMUNICATIONS CORPORATION
1999 Employee Stock Purchase Plan
(Full title of plan)
T. TIMOTHY KERSHISNIK WITH A COPY TO:
CHIEF FINANCIAL OFFICER NICK NIMMO, ESQ.
7100 EAST BELLEVIEW AVENUE HOLME ROBERTS & OWEN LLP
SUITE 201 1700 LINCOLN, SUITE 4100
DENVER, COLORADO 80202 DENVER, COLORADO 80203
(303)770-7600
(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
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
- ------------ ---------- --------- --------- ------------
Common Stock 250,000 $2.875 $718,750 $190(1)
shares
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(1) Calculated pursuant to Rule 457(h).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the Commission by the
Company under the Exchange Act are herein incorporated by reference:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1998, file no. 0-19578.
(b) The Company's Current Report on Form 8-K, as filed with the Commission
on March 31, 1999, file no. 0-19578.
(c) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1999, file no. 0-19578.
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (No. 33-43029), filed with the
Commission on November 9, 1993.
(e) All other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of Common Stock.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein or contained in this Prospectus shall be
deemed to be modified or superseded for purposes of this Prospectus 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 Prospectus.
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation provide that the Company has the
right and/or duty to indemnify a director of the Company to the extent provided
by statute and to indemnify any officer, employee or agent of the Company who is
not a director to the extent provided by law, or to a greater extent if
consistent with law and if provided by resolution of the shareholders or
directors, or in a contract.
Section 7-109-102 of the Colorado Business Corporation Act permits
indemnification of a director of a Colorado corporation, in the case of a third
party action, if the director (a) conducted himself in good faith, (b)
reasonably believed that (i) in the case of conduct in his official capacity,
his conduct was in the corporation's best interest, or (ii) in all other cases,
his conduct was not opposed to the corporation's best interest, and (c) in the
case of any criminal proceeding, had no reasonable cause to believe that his
conduct was unlawful. The section further provides for mandatory indemnification
of directors and officers who are successful on the merits or otherwise in
litigation.
The statute limits the indemnification that a corporation may provide
to its directors in two key respects. A corporation may not indemnify a director
in a derivative action in which the director is held liable to the corporation,
or in any proceeding in which the director is held liable on the basis of his
improper receipt of a personal benefit.
<PAGE>
The statute permits a corporation to indemnify and advance litigation
expenses to officers, employees and agents who are not directors to a greater
extent than directors if consistent with law and provided for by the articles of
incorporation, the bylaws, a resolution of directors or shareholders, or a
contract between the corporation and the officer, employee or agent.
8. EXHIBITS.
4.1 Internet Communications Corporation 1999 Employee Stock Purchase
Plan(1)
5.1 Opinion and Consent of Holme Roberts & Owen LLP.
23.1 Consent of Counsel. See Exhibit 5.1
23.2 Consent of KPMG LLP
23.3 Consent of Hein + Associates LLP
24.1 Power of Attorney. See the
signature page hereof.
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(1) Filed previously as an appendix to the Company's Proxy Statement filed in
connection with the May 27, 1999, Annual Meeting of Shareholders, and
incorporated herein by reference.
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 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; (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; and (3) to remove from registration by means of a
post-effective amendment any of the securities 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
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
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 Company pursuant to the foregoing provisions, or otherwise, the Company 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 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Greenwood Village, State of Colorado, on the 27th of
December, 1999.
INTERNET COMMUNICATIONS CORPORATION
By: /s/ T. Timothy Kershisnik
T. Timothy Kershisnik
Chief Financial Officer, Vice President,
Treasurer, and Secretary
Each person whose signature appears below does hereby make, constitute and
appoint each of T. TIMOTHY KERSHISNIK and JOHN M. COUZENS as such person's true
and lawful attorney-in-fact and agent, with full power of substitution,
resubstitution and revocation to execute, deliver and file with the Securities
and Exchange Commission, for and on such person's behalf, and in any and all
capacities, this Registration Statement on Form S-8, and any and all amendments
(including post-effective amendments) thereto, with all exhibits thereto and
other documents in connection therewith, 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 as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or such person's substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on December 27, 1999.
Name and Signature Title
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/s/ JOHN M. COUZENS Director, President and
- ------------------------------------ Chief Executive Officer
JOHN M. COUZENS (Principal executive officer)
/s/ T. TIMOTHY KERSHISNIK Chief Financial Officer, Vice
- ------------------------------------ President, Treasurer and
T. TIMOTHY KERSHISNIK Secretary (Principal
financial and accounting officer)
Director
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RICHARD T. LIEBHABER
Director
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THOMAS C. GALLEY
/s/ PETER A. GUGLIELMI Director
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PETER A. GUGLIELMI
<PAGE>
/s/ WILLIAM J. MAXWELL Director
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WILLIAM J. MAXWELL
/s/ CRAIG D. SLATER Director
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CRAIG D. SLATER
/S/ ROBERT L. SMITH Director
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ROBERT L. SMITH
EXH. 5.1 -- OPINION AND CONSENT OF HRO
[LETTERHEAD OF HOLME ROBERTS & OWEN LLP APPEARS HERE]
Internet Communications Corporation
7100 E. Belleview Avenue
Greenwood Village, CO 80111
Re: Sale of Shares of Common Stock Pursuant to
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Internet Communications Corporation (the
"Company") in connection with the registration by the Company of 250,000 shares
of common stock (the "Shares") described in the Registration Statement on Form
S-8 of the Company, being filed with the Securities and Exchange Commission
concurrently herewith. In such connection we have examined certain corporate
records and proceedings of the Company including actions taken by the Company's
Board of Directors in respect of the authorization and issuance of the Shares,
and such other matters as we deemed appropriate.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and sold as contemplated by the Registration
Statement and in accordance with the employee benefit plan covered thereby, will
be legally issued, fully paid and non-assessable shares of capital stock of the
Company.
We hereby consent to be named in the Registration Statement and in the
Prospectus constituting a part thereof, as amended from time to time, as the
attorneys who will pass upon legal matters in connection with the issuance of
the Shares, and to the filing of this Opinion as an Exhibit to the aforesaid
Registration Statement. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules of the Securities and Exchange Commission.
Very truly yours,
HOLME ROBERTS & OWEN LLP
Exhibit 23.2
Consent of Independent Auditors
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To the Board of Directors
Internet Communications Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 of Internet Communications Corporation of our report dated March 30, 1999,
relating to the consolidated balance sheets of Internet Communications
Corporation and subsidiaries as of December 31, 1998 and 1997, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
the year ended December 31, 1998 and the eleven month period ended December 31,
1997, which report appears in the December 31, 1998 annual report on Form 10-K
of Internet Communications Corporation.
KPMG LLP
Denver, Colorado
December 23, 1999
Exhibit 23.3
Consent of Independent Auditors
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To the Board of Directors
Internet Communications Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 of Internet Communications Corporation of our report dated May 2, 1997,
relating to the consolidated statements of operations, stockholders' equity, and
cash flows of Internet Communications Corporation and subsidiaries for the year
ended January 31, 1997, which report appears in the December 31, 1998 annual
report on Form 10-K of Internet Communications Corporation.
HEIN + ASSOCIATES LLP
Denver, Colorado
December 23, 1999
