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Registration No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
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
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1994 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
<TABLE>
<CAPTION>
<S> <C>
John J. McDonnell, III, Esq.
Transaction Network Services, Inc.
Transaction Network Services, Inc. 1939 Roland Clarke Place
1939 Roland Clarke Place Reston, Virginia 20191
Reston, Virginia 20191 (703) 453-8300
(Address, including zip code, of (Name, address and telephone number,
registrant's principal executive office) including area code, of agent for service)
</TABLE>
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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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per share aggregate offering Amount of
to be registered registered (1) price (1) registration fee
- ---------------------- ----------------------- ----------------------------- --------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 500,000 $22.3125 $11,156,250.00 $3,101.44
- ---------------------- ----------------------- ----------------------------- --------------------- ----------------------
</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 November 10, 1998, which is
within five business days prior to the date of the filing of this Registration
Statement.
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- --------------------------------------------------------------------------------
Page 1 of 15
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, 1997.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998.
4. The Registrant's Current Report on Form 8-K filed March 9, 1998, as
amended by Form 8-K/A filed May 13, 1998.
5. The Registrant's Current Report on Form 8-K filed July 15, 1998, as
amended by Form 8-K/A filed September 14, 1998.
6. The Registrant's Current Report on Form 8-K filed August 7, 1998.
7. The Registrant's Current Report on Form 8-K filed September 23,
1998.
8. 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.
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9. 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.
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
3
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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.
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
4
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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 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, Commonwealth of Virginia, on the 12th day of
November, 1998.
TRANSACTION NETWORK SERVICES, INC.
By: /s/ Thaddeus G. Weed
--------------------------------------
Thaddeus G. Weed
Chief Financial Officer & Treasurer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints James T. McLaughlin and Thaddeus G. Weed, 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:
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ John J. McDonnell, Jr. President and Chief November 12, 1998
- ----------------------------- Executive Officer,
John J. McDonnell, Jr. Director
/s/ Thaddeus G. Weed Chief Financial Officer November 12, 1998
- ----------------------------- and Treasurer
Thaddeus G. Weed
/s/ Jurgen Manchot Director November 12, 1998
- -----------------------------
Jurgen Manchot
/s/ William N. Melton Director November 12, 1998
- -----------------------------
William N. Melton
/s/ John S. McCarthy Director November 12, 1998
- -----------------------------
John S. McCarthy
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Henry R. Nichols Director November 12, 1998
- -----------------------------
Henry R. Nichols
/s/ Paolo L. Guidi Director November 12, 1998
- -----------------------------
Paolo L. Guidi
/s/ Joseph Squarzini, Jr. Director November 12, 1998
- -----------------------------
Joseph Squarzini, Jr.
</TABLE>
8
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<TABLE>
<CAPTION>
EXIBIT INDEX
------------
Exhibit Page
- ------- ----
<S> <C>
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
(incorporated herein by reference to Exhibit 4(b) to the
Registrant's Registration Statement on Form S-8, No.
333-27159)
(c) 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 Cheshier & Fuller, LLP 13
(c) Consent of Arthur Andersen LLP 14
(d) Consent of Arthur Andersen LLP 15
24. Power of Attorney: included on signature page.
</TABLE>
9
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Exhibit 4(c)
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 two million three hundred
thousand (2,300,000) 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
October 28, 1997.
/s/ John J. McDonnell III
----------------------------------------
Secretary
Date: October 28, 1997
[SEAL]
10
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Exhibit 5
[LETTERHEAD OF ARENT FOX KINTNER PLOTKIN & KAHN]
November 12, 1998
The Board of Directors
Transaction Network Services, Inc.
1939 Roland Clarke Place
Reston, Virginia 20191
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 2,300,000
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 2,300,000 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
11
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The Board of Directors
Transaction Network Services, Inc.
November 12, 1998
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
---------------------------------------
Jeffrey E. Jordan
12
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Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-8, of our report dated April 24, 1998
on the financial statements of SunTech Processing Systems, LLC, included in the
Form 8-K Amendment No. 1 filed by Transaction Network Services, Inc. with the
Securities and Exchange Commission.
/s/ Cheshier & Fuller, LLP
--------------------------------
Cheshier & Fuller, LLP
Dallas, Texas
November 12, 1998
13
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Exhibit 23(c)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8, of our
reports dated January 20, 1998 (except with respect to the matter discussed in
Note 9, as to which the date is February 27, 1998) included in Transaction
Network Services, Inc. and Subsidiaries' Form 10-K for the year ended December
31, 1997 and to all references to our Firm included in this registration
statement.
/s/ ARTHUR ANDERSEN LLP
---------------------------------------
ARTHUR ANDERSEN LLP
Washington, D.C.,
November 11, 1998
14
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Exhibit 23(d)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8, of our report dated August
4, 1998 on the December 31, 1997 financial statements of OmniLink Communications
Corporation, included in Transaction Network Services, Inc. and Subsidiaries'
Form 8-K file No. 000-23856 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
----------------------------------------
ARTHUR ANDERSEN LLP
Detroit, Michigan,
November 11, 1998.
15
