<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 1997
REGISTRATION NO. 333-16495
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
BROOKS FIBER PROPERTIES, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 4813 43-1656187
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
------------------------------
425 Woods Mill Road South, Suite 300
Town & Country, Missouri 63017
(314) 878-1616
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
------------------------------
David L. Solomon
Executive Vice President and Chief Financial Officer
Brooks Fiber Properties, Inc.
425 Woods Mill Road South, Suite 300
Town & Country, MO 63017
(314) 878-1616
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
------------------------------
Copies to:
<TABLE>
<C> <C>
John P. Denneen, Esq. Robert E. Buckholz, Jr., Esq.
Bryan Cave LLP Sullivan & Cromwell
211 N. Broadway, Suite 3600 125 Broad Street
St. Louis, Missouri 63102-2750 New York, New York 10004
(314) 259-2000 (212) 558-4000
</TABLE>
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities offered hereby.
<TABLE>
<S> <C>
Registration Fee............................................ $ 77,253
--------
NASD Filing Fee............................................. 25,994
--------
NASDAQ Listing Fee.......................................... 17,500
Printing and Engraving Expenses............................. 150,000
Blue Sky Fees and Expenses.................................. 0
Registrar and Transfer Agent Fees........................... 1,200
Legal Fees and Expenses..................................... 110,000
Accounting Fees and Expenses................................ 45,000
Miscellaneous............................................... 3,053
--------
Total.................................................. $430,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The following is a summary of Section 145 of the General Corporation Law of
the State of Delaware.
Subject to restrictions contained in the statute, a corporation may
indemnify any person made or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement incurred in connection therewith if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, in connection with any
criminal action or proceeding, had no reasonable cause to believe that such
person's conduct was unlawful. A person who is successful on the merits or
otherwise in any suit or matter covered by the indemnification statute, shall be
indemnified and indemnification is otherwise authorized upon a determination
that the person to be indemnified has met the applicable standard of conduct
required. Such determination shall be made by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, by special independent counsel or by the
shareholders. Expenses incurred in defense may be paid in advance upon receipt
by the corporation of written undertaking by or on behalf of the recipient to
repay such amount if it is ultimately determined that the recipient is not
entitled to indemnification under the statute. The indemnification provided by
statute is not be exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise, and shall inure to the
benefit of the heirs, executors and administrators of such a person. Insurance
may be purchased on behalf of any person entitled to indemnification by the
corporation against any liability incurred in an official capacity regardless of
whether the person could be indemnified under the statute. References to the
corporation include all constituent corporations absorbed in a consolidation or
merger as well as the resulting or surviving corporation and anyone seeking
indemnification by virtue of acting in some capacity with a constituent
corporation would stand in the same position as if such person had served the
resulting or surviving corporation in the same capacity.
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The Amended and Restated Certificate of Incorporation and By-Laws of the
Company provide for indemnification of directors and officers of the Company to
the maximum extent permitted by the General Corporation Law of the State of
Delaware.
The directors and officers of the Company are insured under a policy of
directors' and officers' liability insurance.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
1. SALES OF EQUITY SECURITIES.
a) The information set forth in Item 15, paragraph 1, appearing on pages
II-2 through II-4, of the Company's Registration Statement on Form S-1 (File No.
333-1924) is hereby incorporated by reference.
b) The Company and MCImetro Access Transmission Services, Inc.
("MCImetro") entered into a subscription agreement on June 24, 1996 pursuant to
which MCImetro acquired a 15% interest in the Company's Sacramento, California
network for $4.5 million and MCImetro has invested an additional $3.5 million in
the San Jose joint venture company. In accordance with the provisions of the
agreements between the Company and MCImetro, on October 10, 1996 MCImetro (i)
exchanged the agreed value of its September 1995 investment in the San Jose
network and (ii) exchanged the agreed value of its June 1996 investments in both
networks for an aggregate 958,720 shares of the Company's Common Stock. The
issuance of such shares was not registered under the Securities Act in reliance
on the exemption for nonpublic offerings provided by Section 4(2) of the
Securities Act. MCImetro, an accredited investor, acquired such shares of the
Company's Common Stock for investment and subject to restrictions on transfer
which were described in appropriate legends on the certificate representing such
shares of Common Stock.
c) On November 12, 1996, the Company issued an aggregate of 234,260 shares
of the Company's Common Stock to AT&T Credit Corporation in exchange for the
agreed value of AT&T Credit Corporation's investments in certain subsidiaries of
the Company made in connection with certain loans to such subsidiaries. The
issuance of such shares was not registered under the Securities Act in reliance
on the exemption for nonpublic offerings provided by Section 4(2) of the
Securities Act. AT&T Credit Corporation, an accredited investor, acquired such
shares of the Company's Common Stock for investment and subject to restrictions
on transfer which were described in appropriate legends on the certificate
representing such shares of Common Stock.
d) On April 18, 1996 and July 16, 1996, two related investment funds
exercised warrants to purchase an aggregate of 9,940 shares of the Company's
Common Stock and 5,120 shares of the Company's Common Stock, respectively, at
$11.00 per share (or an aggregate of $109,340) and at $22.17 per share (or an
aggregate of $113,510), respectively. The issuance and sale of the foregoing
securities was not registered under the Securities Act in reliance on the
exemption for nonpublic offerings provided by Section 4(2) of the Securities
Act. Each of the holders of such securities are accredited investors and
acquired such shares for investment and subject to restrictions on transfer
which were described in appropriate legends on the certificates representing
such shares of Common Stock.
e) On September 24, 1996 and October 3, 1996, an investment fund exercised
warrants to purchase an aggregate of 370,200 shares of the Company's Common
Stock at $22.17 per share and warrants to purchase an aggregate of 119,440
shares of the Company's Common Stock at $11.00 per share, respectively, in net
cashless exercises in which the holder acquired an aggregate of 160,195 shares
of the Company's Common Stock. The issuance and sale of the foregoing securities
was not registered under the Securities Act in reliance on the exemption for
nonpublic offerings provided by Section 4(2) of the Securities Act. The holder
of such securities is an accredited investor and acquired such shares for
investment and subject to restrictions on transfer which were described in
appropriate legends on the certificates representing such shares of Common
Stock.
II-2
<PAGE> 4
f) On various dates from November 1, 1996 through November 6, 1996,
warrants to purchase an aggregate of 37,940 shares of the Company's Common Stock
at $22.17 per share were exercised by six investment funds. An aggregate of
12,320 shares was acquired for an aggregate of $273,134 in cash, and an
aggregate of 5,249 shares was acquired in net cashless exercises. The issuance
and sale of the foregoing securities was not registered under the Securities Act
in reliance on the exemption for nonpublic offerings provided by Section 4(2) of
the Securities Act. Each of the holders of such securities are accredited
investors and acquired such shares for investment and subject to restrictions on
transfer which were described in appropriate legends on the certificates
representing such shares of Common Stock.
g) On various dates from October 8, 1996 through November 8, 1996,
warrants to purchase an aggregate of 1,493,840 shares of the Company's Common
Stock at $11.00 per share and 120 shares at $22.17 per share were exercised by
64 holders thereof. An aggregate of 520,809 shares was acquired for an aggregate
of $5,728,899 in cash, and an aggregate of 593,152 shares was acquired in net
cashless exercises. The issuance and sale of the foregoing securities was not
registered under the Securities Act in reliance on the exemption for nonpublic
offerings provided by Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder. The Company believes that no more than 35
of the holders of such warrants were non-accredited investors and that each
person who was not an accredited investor had such knowledge in financial and
business matters to be capable of evaluating the merits and risks of an
investment in the Company's Common Stock. Each of the holders of such warrants
was furnished the information required by paragraphs (b)(2)(ii)(A) and (C) of
Rule 502 of Regulation D. Each of such holders acquired such securities for
investment and subject to restrictions on transfer which were described in
appropriate legends on the certificates representing such shares of Common
Stock.
h) On November 15, 1996, Alex. Brown & Sons Incorporated exercised a
warrant to purchase 192,340 shares of the Company's Common Stock at $8.25 per
share, or an aggregate of $1,586,805. The issuance and sale of the foregoing
securities was not registered under the Securities Act in reliance on the
exemption for nonpublic offerings provided by Section 4(2) of the Securities
Act. The holder of such securities is an accredited investor and acquired such
shares for investment and subject to restrictions on transfer which were
described in appropriate legends on the certificate representing such shares of
Common Stock.
2. SALES OF DEBT SECURITIES
(a) Pursuant to a Purchase Agreement dated February 16, 1996 with Goldman,
Sachs & Co., Bear, Stearns & Co., Inc. and Salomon Brothers Inc as Purchasers,
the Company has issued and sold to said Purchasers $425,000,000 aggregate
principal amount of 10 7/8% Senior Discount Notes due March 1, 2006 (the
"Private Notes") for aggregate gross cash proceeds to the Company of
approximately $250 million. The issuance of such Notes was not registered under
the Securities Act in reliance on the exemption for nonpublic offerings provided
by Section 4(2) of the Securities Act and Rule 506 of Regulation D promulgated
thereunder. Each of said Purchasers agreed that it would only offer or sell the
Notes in the United States to qualified institutional buyers in reliance on Rule
144A promulgated under the Securities Act and to a limited number of
institutional accredited investors in a manner exempt from the registration
requirements of the Securities Act. On August 15, 1996, the Company completed
the exchange of $425,000,000 aggregate principal amount of its 10 7/8% Senior
Discount Notes (the "Exchange Notes") for all outstanding Private Notes. The
Exchange Notes were registered under the Securities Act pursuant to the
Company's Registration Statement on Form S-4 (File No. 333-06791).
(b) Pursuant to a Purchase Agreement dated November 1, 1996 with Goldman,
Sachs & Co. and Salomon Brothers Inc as Purchasers, the Company has issued and
sold to said Purchasers $400,000,000 aggregate principal amount of 11 7/8%
Senior Discount Notes due November 1, 2006 (the "11 7/8% Private Notes") for
aggregate gross cash proceeds to the Company of approximately $225.1 million.
The issuance of such Notes was not registered under the Securities Act in
reliance
II-3
<PAGE> 5
on the exemption for nonpublic offerings provided by Section 4(2) of the
Securities Act and Rule 506 of Regulation D promulgated thereunder. Each of said
Purchasers has agreed that it will only offer or sell such Notes in the United
States to qualified institutional buyers in reliance on Rule 144A under the
Securities Act and to a limited number of institutional accredited investors in
a manner exempt from the registration requirements of the Securities Act, and
outside the United States to non-U.S. persons in offshore transactions in
reliance on Regulation S under the Securities Act. The subsequent resale of such
Notes is also restricted. Such restrictions on transfer were described in
appropriate legends on each of such Notes which have been issued in fully
registered form. On December 31, 1996, the Company offered to exchange
$400,000,000 aggregate principal amount of its 11 7/8% Senior Discount Notes
(the "11 7/8% Exchange Notes") for all outstanding 11 7/8% Private Notes. The
11 7/8% Exchange Notes were registered under the Securities Act pursuant to the
Company's Registration Statement on Form S-4 (File No. 333-18503).
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
See Exhibit Index.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities 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 14, 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
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, 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each
post-effective amendment that contains a form of prospectus 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 provide to the Underwriters at the closing specified in the
Underwriting Agreement, certificates in such denominations and registered in
such names as required by the Underwriters to permit prompt delivery to each
purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 3 to this Registration Statement to be signed
on its behalf by the undersigned thereunto duly authorized, in the City of Town
& Country, State of Missouri, on January 28, 1997.
BROOKS FIBER PROPERTIES, INC.
By: /s/ JAMES C. ALLEN
-------------------------------------
James C. Allen
Vice Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to this Registration Statement has been signed by the following persons in
the capacities indicated on January 28, 1997.
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SIGNATURES TITLE
---------- -----
<S> <C>
* Director (Chairman of the Board)
- ------------------------------------------
Robert A. Brooks
/s/ JAMES C. ALLEN Vice Chairman and Director (Chief Executive Officer)
- ------------------------------------------
James C. Allen
* President and Director (Chief Operating Officer)
- ------------------------------------------
D. Craig Young
/s/ DAVID L. SOLOMON Executive Vice President and Chief Financial Officer
- ------------------------------------------ (Principal Financial and Accounting Officer)
David L. Solomon
* Director
- ------------------------------------------
Robert F. Benbow
* Director
- ------------------------------------------
William J. Bresnan
* Director
- ------------------------------------------
Jonathan M. Nelson
* Director
- ------------------------------------------
G. Jackson Tankersley, Jr.
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURES TITLE
- ------------------------------------- -----------------------------------------------------------
<S> <C>
- ------------------------------------- Director
Ronald H. Vander Pol
* Director
- -------------------------------------
Carol deB. Whitaker
*By: /s/ DAVID L. SOLOMON
- ----------------------------------
David L. Solomon,
Attorney-in-Fact
</TABLE>
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<PAGE> 8
INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
++1.1 Form of Underwriting Agreement (U.S. Version)
++1.2 Form of Underwriting Agreement (International Version)
2.1 Agreement and Plan of Merger dated December 19, 1995 between
the Company and Brooks Telecommunications Corporation
(incorporated by reference to Exhibit 2.1 to the Company's
Registration Statement on Form S-1 (File No. 333-1924) filed
with the Commission on March 4, 1996 (the "IPO Form S-1"))
2.2 Agreement and Plan of Merger dated January 17, 1996 between
the Company, Brooks Fiber Communications of Michigan, Inc.,
City Signal, Inc. and Ronald H. Vander Pol (incorporated by
reference to Exhibit 2.2 to the IPO Form S-1)
3.1(a) Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1(a) to the IPO Form
S-1)
3.1(b) Certificate of Designation of Series C Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3.1(c)
to the IPO Form S-1)
3.1(c) Certificate of Amendment of Certificate of Incorporation of
the Company dated as of August 20, 1996 (incorporated by
reference to Exhibit 3 to the Company's Quarterly Report on
Form 10-Q, as amended, for the Period Ended September 30,
1996 (File No. 0-28036) filed with the Commission on
November 14, 1996)
3.2 By-laws of the Company (incorporated by reference to Exhibit
3.2 to the Company's Report on Form 10-Q for the Period
Ended March 31, 1996 (File No. 0-28036) filed with the
Commission on May 15, 1996)
4.1 Form of Specimen Certificate for Common Stock (incorporated
by reference to Exhibit 4.1 to the IPO Form S-1)
4.2 Rights Agreement dated February 29, 1996 between the Company
and The Boatmen's Trust Company, as Rights Agent
(incorporated by reference to Exhibit 4.2 to the IPO Form
S-1)
4.3 Amended and Restated Stockholders Agreement dated as of June
15, 1995 (incorporated by reference to Exhibit 4.3 to the
IPO Form S-1)
4.4 Amended and Restated Registration Rights Agreement dated as
of June 15, 1995 (incorporated by reference to Exhibit 4.4
to the IPO Form S-1)
4.5 Indenture dated as of February 26, 1996 between the Company
and The Bank of New York, as Trustee (incorporated by
reference to Exhibit 4.6 to the IPO Form S-1)
++4.6 Indenture dated as of November 7, 1996 between the Company
and The Bank of New York, as Trustee
++4.7 Exchange and Registration Rights Agreement dated as of
November 7, 1996
4.8 Amended and Restated Loan and Security Agreement dated as of
October 1, 1996 among AT&T Credit Corporation, the Company
and certain subsidiaries of the Company (incorporated by
reference to Exhibit 4.8 to the Company's Registration
Statement on Form S-4 (File No. 333-18503) filed with the
Commission on December 20, 1996)
4.9 The Company has not filed certain instruments with respect
to long-term debt since the total amount of securities
authorized thereunder does not exceed 10% of the total
assets of the Company and its subsidiaries on a consolidated
basis. The Company agrees to furnish a copy of any such
agreement to the Commission upon request.
- ---------------
++ Previously filed.
</TABLE>
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
++5.1 Opinion of Bryan Cave LLP regarding the validity of the
Common Stock
10.1 1993 Stock Option Plan of the Company (incorporated by
reference to Exhibit 10.1 to the IPO Form S-1)
10.2 Form of Non-Qualified Stock Option Agreement under the
Company's 1993 Stock Option Plan (incorporated by reference
to Exhibit 10.2 to the IPO Form S-1)
10.3 1996 Employee Stock Purchase Plan of the Company
(incorporated by reference to Exhibit 10.3 to the IPO Form
S-1)
10.4 1993 Stock Option Plan of Brooks Telecommunications
Corporation ("BTC") (incorporated by reference to Exhibit
10.4 to the IPO Form S-1)
10.5 Form of Substituted Non-Qualified Stock Option Agreement
under BTC's 1993 Stock Option Plan (incorporated by
reference to Exhibit 10.5 to the IPO Form S-1)
10.6 Option Agreement dated as of January 31, 1996 between the
Company and Ronald H. Vander Pol (incorporated by reference
to Exhibit 10.6 to the IPO Form S-1)
++11.1 Statement Re Computation of Per Share Earnings
++21.1 Subsidiaries of the Company
++23.1 Consent of Bryan Cave LLP (included in Exhibit 5.1)
++23.2 Consent of KPMG Peat Marwick LLP
++23.3 Consent of BDO Seidman, LLP
++24.1 Power of Attorney
</TABLE>
- ---------------
++ Previously filed.
II-8
