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Registration No.
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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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TRANSACTION NETWORK SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 54-1555332
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1994 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
John J. McDonnell, III, Esq.
Transaction Network Services, Inc.
Transaction Network Services, Inc. 1939 Roland Clarke Place
1939 Roland Clarke Place Reston, Virginia 22091
Reston, Virginia 22091 (703) 453-8300
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(Address, including zip code, of (Name, address and telephone number,
registrant's principal executive including area code, of agent for
office) service)
The Commission is requested to send copies of all communications to:
Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Avenue, N.W., Washington, D.C. 20036
Attention: Jeffrey E. Jordan, Esq., (202) 857-6473
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed
maximum Proposed
offering maximum
Amount to price aggregate Amount of
Title of securities be per offering registration
to be registered registered share (1) price (1) fee
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<S> <C> <C> <C> <C>
Common Stock, par value 1,200,000 $12.125 $14,550,000 $4,410
$.01 per share
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</TABLE>
(1) Pursuant to Rule 457(h)(1), based on the average of the high and low prices
reported in the consolidated reporting system as of May 9, 1997, which is within
five business days prior to the date of the filing of this Registration
Statement.
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Page 1 of 13
Exhibit Index on Page 9.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Information required by Part I to be contained in a Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 (the "Securities Act")
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997.
3. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the
end of the fiscal year ended December 31, 1996.
4. The Registrant's Form 8-A Registration Statement filed pursuant
to Section 12 of the Exchange Act, containing a description of
the Registrant's common stock ("Shares"), including any amendment
or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of
such documents.
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Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or
investigative, 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 its request in
such capacity in another corporation or business association, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Section 102(b)(7) or the Delaware General Corporation Law, as amended,
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit.
Article Fourteenth of the Registrant's Restated Certificate of
Incorporation, as amended, provides for the elimination of personal
liability of a director for breach of fiduciary duty as permitted by
Section 102(b)(7) of the Delaware General Corporation Law, and Article
Thirteenth provides that the Registrant shall indemnify its directors and
officers to the fullest extent permitted by the Delaware General
Corporation Law.
The Registrant has in effect a directors and officers liability
insurance policy under which the directors and officers of the Registrant
are insured against loss arising from claims made against them due to
wrongful acts while acting in their individual and collective capacities as
directors and officers, subject to certain exclusions.
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Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Exhibit Index on page 9.
Item 9. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registrant Statement;
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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;
(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 the undertakings set forth in paragraphs (1)(i) and
(1)(ii) above 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 the Registrant 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, 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.
(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 Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in the Registration
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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 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities 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, unless in the opinion of its counsel the matter has been
settled by controlling precedent, will submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
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Pursuant to the requirements of the Securities Act, the Registrant
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 Reston, State of Virginia, on the
12th day of May, 1997.
TRANSACTION NETWORK SERVICES, INC.
By: /s/ Elizabeth A. Crawford
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Vice President
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POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints John J. McDonnell, Jr. and John J.
McDonnell, III, and each of them his true and lawful attorney-in-fact and
agent with power of substitution and resubstitution, for him, and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post effective amendments) to this Registration
Statement on Form S-8, and to file the same, with all exhibits thereto, and
all documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done to comply with the provisions of the Securities Act
and all requirements of the Commission, hereby ratifying and confirming all
that said attorney-in-fact or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the date indicated:
Signatures Title Date
---------- ----- ----
/s/ John J. McDonnell, Jr. President and Chief May 12, 1997
--------------------------
John J. McDonnell, Jr. Executive Officer,
Director
/s/ Elizabeth A. Crawford Vice President, Finance May 12, 1997
--------------------------
Elizabeth A. Crawford (Principal Financial and
Accounting Officer)
/s/ Jurgen Manchot
-------------------------- Director May 12, 1997
Jurgen Manchot
/s/ William N. Melton
-------------------------- Director May 14, 1997
William N. Melton
-------------------------- Director May 12, 1997
John S. McCarthy
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/s/ Henry R. Nichols
------------------------- Director May 12, 1997
Henry R. Nichols
/s/ Paolo L. Guidi
------------------------- Director May 12, 1997
Paolo L. Guidi
-8-
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EXHIBIT INDEX
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Exhibit Page
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4. Instruments defining the rights of security holders
(a) The Registrant's 1994 Employee Stock Option
Plan, as amended (incorporated herein by
reference to Exhibit 10.2 to the
Registrant's Registration Statement on Form S-1,
No. 33-76426)
(b) Amendment to the Registrant's 1994 Employee Stock Option
Plan 10
5. Opinion of Arent Fox Kintner Plotkin & Kahn
re: validity of securities registered 11
23. Consents of experts and counsel
(a) Consent of Arent Fox Kintner
Plotkin & Kahn: included in exhibit 5
(b) Consent of Arthur Andersen & Co. 13
24. Power of Attorney: included on signature page.
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Exhibit 4(b)
Amendment to the
Transaction Network Services, Inc.
1994 Stock Option Plan
The Transaction Network Services, Inc. 1994 Stock Option Plan is
hereby amended as follows:
Section 6(a) is hereby amended to read as follows:
(a) The stock subject to the Options shall be shares of the
Common Stock. Such shares may, in whole or in part, be authorized but
unissued shares contributed directly by the Company or shares which
shall have been or which may be acquired by the Company. The
aggregate number of shares of Common Stock as to which Options may be
granted from time to time under the Plan shall be one million two
hundred thousand (1,200,000) shares. The limitation established by
the preceding sentence shall be subject to adjustment as provided in
Section 7(i) hereof.
The foregoing amendment was adopted by the Board of Directors on
April 16, 1996.
/s/ John J. McDonnell III
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Secretary
Date: April 16, 1996
[SEAL]
<PAGE>
Exhibit 5
[LETTERHEAD OF ARENT FOX KINTNER PLOTKIN & KAHN]
May 12, 1997
The Board of Directors
Transaction Network Services, Inc.
1939 Roland Clarke Place
Reston, Virginia 22091
Gentlemen:
We have acted as counsel to Transaction Network Services,
Inc. (the "Company") with respect to the Company's Registration
Statement on Form S-8 to be filed by the Company with the
Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933 of 1,200,000 shares
of Common Stock, $.01 par value (the "Shares").
As counsel to the Company, we have examined the Company's
Certificate of Incorporation and such records, certificates and
other documents of the Company, as well as relevant statutes,
regulations, published rulings and such questions of law, as we
considered necessary or appropriate for the purpose of this
opinion.
We assume that, prior to the sale of any Shares to which the
Registration Statement relates, appropriate action will be taken
to register and qualify such Shares for sale, to the extent
necessary, under any applicable state securities laws.
Based on the foregoing, we are of the opinion that the
1,200,000 Shares subject to the Transaction Network Services,
Inc. 1994 Employee Stock Option Plan, as amended (the "Option
Plan"), when issued and paid for in accordance with the terms of
the Option Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to all references to
our firm in the Registration
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The Board of Directors
Transaction Network Services, Inc.
May 12, 1997
Page 2
Statement. In giving this consent, we do not hereby admit that
we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933 or the General
Rules and Regulations thereunder.
Very truly yours,
ARENT FOX KINTNER PLOTKIN & KAHN
By: /s/ Jeffrey E. Jordan
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Jeffrey E. Jordan
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8, of our reports dated January 24, 1997 included in
Transaction Network Services, Inc. and Subsidiary's Form 10-K for the year ended
December 31, 1996, as filed with the Securities and Exchange Commission, and to
all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Washington, D.C.
May 12, 1997
