<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 19, 1997
REGISTRATION NO. 333-21223
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-4
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 (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
INCORPORATION OR
ORGANIZATION)
</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
425 WOODS MILL ROAD SOUTH, SUITE 300
TOWN & COUNTRY, MISSOURI 63017
(314) 878-1616
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Copies to:
JOHN P. DENNEEN, ESQ.
BRYAN CAVE LLP
211 NORTH BROADWAY, SUITE 3600
ST. LOUIS, MISSOURI 63102
(314) 259-2000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: 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.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, 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
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this Amendment No. 2 to this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Town and
Country, State of Missouri, on March 18, 1997.
BROOKS FIBER PROPERTIES, INC.
By: 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. 2 to this Registration Statement has been signed by the following persons in
the capacities indicated on March 18, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Director (Chairman of the Board)
- --------------------------------------------
Robert A. Brooks
JAMES C. ALLEN Vice Chairman, Chief Executive Officer
- -------------------------------------------- and Director (Principal Executive Officer)
James C. Allen
* President and Director
- -------------------------------------------- (Chief Operating Officer)
D. Craig Young
DAVID L. SOLOMON Executive Vice President and
- -------------------------------------------- Chief Financial Officer
David L. Solomon (Principal Financial and Accounting Officer)
* Director
- --------------------------------------------
Robert F. Benbow
* Director
- --------------------------------------------
William J. Bresnan
* Director
- --------------------------------------------
Jonathan M. Nelson
* Director
- --------------------------------------------
G. Jackson Tankersley, Jr.
* Director
- --------------------------------------------
Ronald H. Vander Pol
* Director
- --------------------------------------------
Carol deB. Whitaker
</TABLE>
*By: DAVID L. SOLOMON
---------------------------------
David L. Solomon
Attorney-in-Fact
II-1
<PAGE> 3
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
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 (the "September 30, 1996 Form 10-Q")
**3.2 By-laws of the Company, as amended on February 19, 1997
4.1 Form of Exchange Note (included in Exhibit 4.2).
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 (incorporated by
reference to Exhibit 4.6 to the Company's Registration
Statement on Form S-1 (File No. 333-16495) filed with the
Commission on November 20, 1996 (the "Secondary Offering
Form S-1"))
4.7 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
Commission on December 20, 1996)
4.8 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.
5.1 Opinion of Bryan Cave LLP regarding the validity of the
Common Stock
</TABLE>
II-2
<PAGE> 4
<TABLE>
<C> <S>
**10.1 1993 Stock Option Plan of the Company, as amended on December 23, 1996
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)
**10.7 Employment, Consulting and Non-Competition Agreement dated as of March 11, 1997 between the Company
and Robert A. Brooks
11.1 Statement Re Computation of Per Share Earnings (incorporated by reference to Exhibit 11 to the
September 30, 1996 Form 10-Q)
21.1 Subsidiaries of the Company (incorporated by reference to Exhibit 21.1 to the Secondary Offering
Form S-1)
23.1 Consent of Bryan Cave LLP (included in Exhibit 5.1)
**23.2 Consent of KPMG Peat Marwick LLP
**24.1 Power of Attorney
</TABLE>
- -------------------------
** Previously filed.
II-3
<PAGE> 1
[BRYAN CAVE LLP LETTERHEAD]
March 18, 1997
Board of Directors
Brooks Fiber Properties, Inc.
425 Woods Mill Road South, Suite 300
Town & Country, Missouri 63017
Gentlemen:
We are acting as special counsel for Brooks Fiber Properties,
Inc., a Delaware corporation (the "Company"), in connection with various legal
matters relating to the filing of Registration Statement No. 333-21223 on Form
S-4 (the "Registration Statement") with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), covering the
registration of 10,000,000 shares of the Company's Voting Common Stock, par
value $.01 per share ("Common Stock"), and associated Preferred Stock Purchase
Rights (the "Rights"). The Rights, if and when they become exercisable, would
entitle the registered holders thereof (with certain exceptions) to purchase
from the Company one one-thousandth of a share of the Company's Series C Junior
Participating Preferred Stock, par value $.01 per share ("Series C Preferred
Stock"), at a price of $100.00 per one one-thousandth of a share of Series C
Preferred Stock, subject to adjustment. The Rights have been authorized and
distributed pursuant to the Rights Agreement dated as of February 29, 1996
("Rights Agreement") between the Company and The Boatmen's Trust Company, as
Rights Agent, to which Rights Agreement reference is made for the terms and a
description of the Rights.
In connection herewith, we have examined and relied without
independent investigation as to matters of fact upon such certificates of
public officials, such statements and certificates of officers of the Company
and originals or copies certified to our satisfaction of the Registration
Statement, the Restated Certificate of Incorporation and By-laws of the
Company, the Rights Agreement, proceedings of the Board of Directors of the
Company and such other corporate records, documents, certificates and
instruments as we have deemed necessary or appropriate in order to enable us to
render the opinions expressed below. In rendering this opinion, we have
assumed the genuineness of all signatures on all documents examined by us, the
authenticity of all documents submitted to us as originals and the conformity
to authentic originals of all documents submitted to us as certified or
photostatted copies.
Based upon the foregoing and in reliance thereon, and upon our
review of applicable statutes and case law, and subject to the qualifications
and limitations stated herein, we are of the opinion that:
<PAGE> 2
Board of Directors
Brooks Fiber Properties, Inc.
March 18, 1997
Page 2
(1) The Company is a corporation validly existing in good standing
under the laws of the State of Delaware;
(2) When,
(i) the Registration Statement, including any amendments
thereto, shall have become effective under the Act;
and
(ii) the shares of Common Stock being registered by the
Company shall have been duly issued and sold as
contemplated by the Registration Statement;
then such shares of Common Stock will be legally issued, fully
paid and non-assessable; and
(3) The Company, as a Delaware corporation, has the authority to
issue the Rights without stockholder approval as a matter
properly within the business judgment of the Board of
Directors of the Company, and, assuming that such judgment has
been exercised in good faith (which we know of no reason to
question), the Rights have been duly authorized and validly
issued.
The basis for our opinion in clause (3) above is described
below.
The General Corporation Law of the State of Delaware (the
"DGCL") expressly authorizes a Delaware corporation, subject to any provisions
in its certificate of incorporation, to create and issue rights entitling the
holders thereof to purchase from the corporation any shares of its capital
stock of any class or classes (DGCL, Section 157). The Board of Directors of
the Company may, by resolution, determine the terms upon which, including the
time or times at or within which, and the price or prices at which, any such
shares may be purchased from the Company upon exercise of any of such rights.
In the absence of actual fraud in the transaction, the judgment of the
directors as to the consideration for the issuance of such rights and the
sufficiency thereof shall be conclusive (DGCL, Section 157). The DGCL does not
require stockholder approval for the issuance of rights.
The Company's Restated Certificate of Incorporation does not
contain any restriction or limitation on the authority of the Board of
Directors of the Company to authorize, or of the Company to issue rights.
However, the Company must have sufficient authorized but unissued shares
available in the event that the Rights are exercised. Based on the number of
outstanding shares of Common Stock on the date hereof, following the exercise
of the Company's currently outstanding warrants and options, the Company would
have 35,917,400 shares of Common Stock issued and outstanding, and 14,082,600
shares of Common Stock and 1,040,012 shares of Preferred Stock, par value $.01
per share (including 50,000 shares designated
<PAGE> 3
Board of Directors
Brooks Fiber Properties, Inc.
March 18, 1997
Page 3
as Series C Preferred Stock), authorized but not outstanding. Accordingly,
following such exercises, the Company would have sufficient authorized but not
outstanding shares of Series C Preferred Stock to fulfill its obligations in
the event the Rights were then exercised. The Rights Agreement contains
provisions which obligate the Company to reserve sufficient shares of Series C
Preferred Stock to permit exercise in full of all outstanding Rights.
Delaware courts have, on a number of occasions, concluded that
corporations organized in Delaware are authorized to issue rights having terms
and conditions similar to those set out in the Rights Agreement. These cases
have supported the authority of the board of directors of a corporation to
adopt rights plans and issue the rights in the absence of any stockholder
approval. See, e.g., Moran v. Household International, Inc., 500 A.2d 1346
(Del. 1985) ("Household") (the Delaware Supreme Court held that a Delaware
corporation had sufficient authority to adopt a flip-over rights plan under
Delaware corporate law); Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc.,
506 A.2d 173, 181 (Del. 1986) (the Delaware Supreme Court spoke approvingly of
a flip-in rights plan in dicta); American Gen. Corp. v. Unitrin, Inc., C.A.
Nos. 13656 and 13699, Del. Ch. LEXIS 187, *26-7 (1994), rev'd on other grounds,
651 A.2d 1361 (Del. 1995) (Delaware Chancery Court refused to enjoin a
shareholder rights plan with flip-in and flip-over provisions after determining
the Delaware corporation's board adopted the plan upon concluding in good faith
that a bidder's cash offer for all shares was inadequate); Tate & Lyle PLC v.
Staley Continental Inc., CCH Fed. Sec. L. Rep. 1988 Dec. &93.764 (Del. Ch.
1988) (Delaware Chancery Court refused to enjoin shareholder rights plan with
both flip-over and flip-in provisions and refused to order redemption of rights
under plan); BNS Inc. v Koppers Co., 683 F. Supp. 458 (D.C. Del. 1988) (U.S.
District Court for the District of Delaware refused to order directors of
Delaware corporation to redeem rights under plan that had both flip-in and
flip-over rights); CRTF Corp. v. Federated Dept. Stores, Inc., CCH Fed. Sec. L.
Rep. 1988 Dec. &93.711 (S.D.N.Y. 1988) (U.S. District Court for the Southern
District of New York rejected a request for a preliminary injunction based,
inter alia, upon a challenge to the validity under Delaware law of rights plan
containing both flip-in and flip-over provisions and refused to order board of
directors to redeem rights); Moore Corp. v. Wallace Computer Servs., 907 F.
Supp 1545 (D. Del. 1995) (Delaware District Court held that Board's decision
not to redeem poison pill as part of a "just say no" defense against hostile
tender offer was a valid exercise of its business judgment).
Some courts have granted injunctions requiring a board of
directors to redeem rights of the sort discussed in this letter. See, e.g.,
City Capital Assocs. L.P. v. Interco Inc., 551 A. 2d 787 (Del. Ch. 1988); and
Grand Met. PLC v. The Pillsbury Co., CCH Fed. Sec. L. Rep. 1988-89 Dec.
&94.104 (Del. Ch. 1988). However, we do not interpret these decisions as
undermining the validity of the rights there involved or the adoption or
issuance thereof. Rather, these cases relate to the propriety of a decision by
a board of directors to leave existing rights outstanding under certain
circumstances after an acquisition offer has been made.
<PAGE> 4
Board of Directors
Brooks Fiber Properties, Inc.
March 18, 1997
Page 4
Several courts in other jurisdictions have granted preliminary
injunctions against the implementation by certain corporations of various
rights plans because the court viewed the corporation laws under which those
corporations were formed as forbidding discrimination in rights between holders
of shares of the same series and class, and thus as precluding provisions such
as flip-in terms that may be characterized as discriminatory against certain
holders.(1) The Delaware Supreme Court held in the Household case, however, that
discrimination between shareholders, as opposed to discrimination between
shares, was permissible, and thus the flip-over rights plan in question was
valid.
A number of cases have held that exercise by a board of
directors of authority such as the power to authorize and issue rights is
governed by the business judgment rule which provides that a court will not
interfere with a good faith decision by adequately informed disinterested
directors which the directors reasonably believe is in or not opposed to the
best interests of the corporation. See, e.g., Household. However, certain
courts have held that the traditional business judgment rule should be modified
when a board of directors adopts measures that could have an anti-takeover
effect. These courts have required that, before the business judgment rule is
applied in a takeover context, the directors must carry the burden of
demonstrating that there was a danger to corporate policy and effectiveness and
that the action taken was reasonable in relation to the threat imposed. See,
e.g., Unocal Corp. v. Mesa Petroleum Co., 493 A. 2d 946, 954 (Del. 1985)
("Unocal") and Household. If the plaintiff can succeed in proving that the
sole or primary purpose of the anti-takeover measure was
__________________________________
(1) Asarco Inc. v. Court, 611 F.Supp. 468 (D. N.J. 1985) (holding that New
Jersey corporate law proscribed discrimination between voting power
within a class of preferred stock); Amalgamated Sugar Co. v. NL
Indus., Inc., 644 F.Supp. 1229 (S.D. N.Y. 1986) (holding that a rights
plan with flip-in provisions which operated to dilute the equity and
voting power of acquiring shareholder was ultra vires as a matter of
New Jersey law since the New Jersey Business Corporation Act did not
allow discrimination among shareholders of same class and series of
stock); R.D. Smith & Co. v. Preway, Inc., 644 F.Supp. 868 (W.D. Wis.
1986) (denying preliminary injunction to party opposing rights plan
despite probability that plan would be held invalid under Wisconsin
law because it discriminated by according different voting powers to
shareholders within the same class of stock); Bank of New York Co. v.
Irving Bank Corp., 536 N.Y.S.2d 923 (Sup. Ct. N.Y. Co. 1988) (holding
a flip-in provision to be a discrimination between shareholders of the
same class that was not permissible under the New York Business
Corporation Law). The state legislatures in these and certain other
states whose statutes have been similarly construed have subsequently
amended their statutes to explicitly authorize rights plans with
discriminatory provisions (see, e.g., N.J. Bus. Corp. Act Section
14A:7-7; N.Y. Bus. Corp. Law Section 505(a)(2) and Wis. Bus. Corp. Law
Section 180.0624).
<PAGE> 5
Board of Directors
Brooks Fiber Properties, Inc.
March 18, 1997
Page 5
entrenchment of management, good faith is negated, and the business judgment
rule will not apply. The directors then must prove the intrinsic fairness of
the measure. See, e.g., Mills Acquisition Co. v. Macmillan, Inc., 559 A.2d
1261, 1280 (Del. 1989) (finding a lack of candor in communications during an
auction process involving a management buyout group, the court enjoined an
asset lock-up agreement and stated "[w]hen faced with such divided loyalties,
directors have the burden of establishing the entire fairness of the
transaction to survive careful scrutiny by the courts.").
In deciding whether to sustain anti-takeover measures adopted
by a board of directors, three elements recur in the case law. First, the
board must be reasonably diligent in the process by which it selects the
anti-takeover measure. Second, the measure adopted by the board must be a
suitable response to the threat posed. And finally, the board must carefully
structure any rights plan it may adopt in order to minimize potential abuses,
particularly abuses in the nature of actions which would prevent any takeover
offer from succeeding.
In rendering the opinion expressed in clause (3) above, we
have assumed that the Company's Board of Directors, in considering and
approving the distribution of the Rights described herein, addressed matters
responsive to the requirements set out above. Nothing has come to our
attention which would cause us to question the good faith of the directors in
approving the distribution of the Rights or which would lead us to believe that
we are not justified in relying on the assumptions referred to above.
Taking the foregoing into account, it is our opinion that
rights with terms and conditions of the sort included in the Rights Agreement
are valid under Delaware law and may thus be lawfully authorized and issued by
the Company. It is also our opinion that approval of the Rights is a matter
properly within the business judgment of the Company's Board of Directors and,
assuming that such judgment has been exercised in good faith (which we know of
no reason to question), is thus consistent with the fiduciary obligations of
the Board of Directors to the Company and its stockholders.
This opinion is not rendered with respect to any laws other
than the General Corporation Law of the State of Delaware and the Act.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to our firm under the
caption "Validity of Common Stock" in the Prospectus filed as a part thereof.
We also consent to your filing copies of this opinion as an exhibit to the
Registration Statement with agencies of such states as you deem necessary in
the course of complying with the laws of such states regarding the offering and
sale of such shares of Common Stock. In giving this consent, we do not admit
that we are in the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
BRYAN CAVE LLP
